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DATE: July 15, 2015 CONSENT CALENDAR
SUBJECT: AIRPORT DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
FROM: David H. Ready, City Manager
BY: Department of Aviation
SUMMARY
This action addresses the Federal Aviation requirement for Palm Springs International
Airport to maintain a current Disadvantaged Business Enterprise (DBE) Program.
RECOMMENDATION:
1. Approve Palm Springs International Airport's (PSP) Disadvantaged Business
Enterprise (DBE) Program, pending FAA approval.
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
All airports that are the recipients of Federal Aviation grant funds are required to maintain
a Disadvantaged Business Enterprise (DBE) Program as set forth in the rules and
regulations found in the Department of Transportation's (DOT) Code of Federal
Regulations (CFR) Title 49 Part 23. Regulation 49 CFR Part 26 stipulates that in grant
projects, recipients must never exclude any person from participation in, deny any person
the benefits of, or otherwise discriminate against anyone in connection with the award
and performance of any contract on the basis of race, color, sex, or national origin. In
administering this DBE Program, the City will not, directly or through contractual or other
arrangements, use criteria or methods of administration that have the effect of defeating
or substantially impairing the DBE Program objectives.
With the recent changes in the program requirements, it is time for PSP Airport to submit
a revised plan for approval which incorporates the new mandatory small business
program elements into the program. The attached program, as prepared by Airport
Concession Consultants (ACC), incorporates the airport's previous program and provides
for the modifications as required to satisfy the new federal requirement.
ITEM NO.
City Council Staff Report
July 15, 2015 -- Page 2
Airport Disadvantaged Business Enterprise Program
The current DBE Program was developed with the assistance of the same firm, Airport
Concession Consultants (ACC), and was approved by the City Council on November 1,
2006. There has not been any reason to change the plan until this recent Federal
Government additional requirement. The new program adds:
• The Small Business Program elements to foster additional small business
participation.
• Enforcement mechanisms for the DBE program.
• Certification approvals for contractors to certify and complete.
In addition, the program includes updated provisions such as:
1 . Ensure nondiscrimination in the award and administration of DOT assisted
contracts;
2. To create a level playing field on which DBEs can compete fairly for DOT
assisted contracts;
3. To ensure that the DBE Program is narrowly tailored in accordance with the
Regulations and other applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are
permitted to participate as DBEs;
5. To help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and
procurement activities;
7. To assist the development of firms that can compete successfully in the
marketplace outside the DBE Program; and
8. To provide appropriate flexibility to the City in establishing and providing
opportunities for DBEs.
The program includes DBE goals established for the current period through September
30, 2017, as approved by Council on October 1, 2014, and new goals will be established
for FAA approval every third year beginning October 1, 2018.
Consistent with the program, staff continues to work toward the goals, including recent
participation in a June 2015 Small Business Workshop, to create awareness of projects
that will become available with the new federal year beginning October 1, 2015. This
workshop provided participants DBE Program overviews and encouraged small and
disadvantaged businesses to compete for future federally funded contracts and
subcontracts.
Once Council has approved this modified program, it will be forwarded to the FAA for final
approval, and then it will be implemented with all future federal grant projects, other
applicable airport leases, contracts and agreements.
02
City Council Staff Report
July 15, 2015 -- Page 3
Airport Disadvantaged Business Enterprise Program
FISCAL IMPACT:
No�Fiscal
]�Impact.
Thomas Nolan, David H. Ready, Es
Executive Director, Airport City Manager
Attachments: DBE Program
03
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INTERNATIONAL AIRPORT
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DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
(DBE)
49 CFR PART 26
REVISED JULY 2015
04
Table of Contents
POLICY STATEMENT.................................................................................................... 1
Section 26.1, 26.23 Objectives/Policy Statement.................................................... 1
SUBPART A— GENERAL REQUIREMENTS ................................................................3
Section26.1 Objectives.............................................................................................3
Section 26.3 Applicability .........................................................................................3
Section 26.5 Definitions............................................................................................3
Section 26.7 Non-discrimination Requirements .....................................................3
Section 26.11 Record Keeping Requirements ........................................................4
Section 26.13 Federal Financial Assistance Agreement........................................4
SUBPART B - ADMINISTRATIVE REQUIREMENTS....................................................5
Section 26.21 DBE Program Updates ......................................................................5
Section 26.23 Policy Statement................................................................................6
Section 26.25 DBE Liaison Officer (DBELO) ...........................................................6
Section 26.27 DBE Financial Institutions ................................................................7
Section 26.29 Prompt Payment Mechanisms..........................................................7
Section26.31 Directory.............................................................................................8
Section 26.33 Over-concentration............................................................................8
Section 26.35 Business Development Programs....................................................8
Section 26.37 Monitoring and Enforcement Mechanisms......................................9
Section 26.39 Fostering small business participation. ........................................ 10
SUBPART C — GOALS, GOOD FAITH EFFORTS, AND COUNTING......................... 10
Section 26.43 Set-asides or Quotas....................................................................... 10
Section 26.45 Overall Goals.................................................................................... 10
Section 26.47 Failure to Meet Overall Goals ......................................................... 13
Section 26.51(a-c) Breakout of Estimated Race-Neutral ................................... 13
& Race-Conscious Participation ............................................................................ 13
Section 26.51(d-g)Contract Goals.......................................................................... 14
Section 26.53 Good Faith Efforts Procedures....................................................... 15
Section 26.55 Counting DBE Participation............................................................20
SUBPART D— CERTIFICATION STANDARDS ..........................................................20
Section 26.61 —26.73 Certification Process.......................................................... 20
SUBPART E — CERTIFICATION PROCEDURES........................................................20
Section 26.81 Unified Certification Programs.......................................................20
SUBPART F — COMPLIANCE AND ENFORCEMENT ................................................20
Section 26.109 Information, Confidentiality, Cooperation and intimidation or
retaliation .................................................................................................................20
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ATTACHMENTS
Attachment 1 49 CFR Part 26 Definitions
Attachment 2 49 CFR Part 26: Website Link
Attachment 3 Organizational Chart
Attachment 4 Bidders List Collection Form
Attachment 5 Link to DBE Directory
Attachment 6 Overall Goal Calculations
Attachment 7 DBE Monitoring and Enforcement Mechanisms
Attachment 8 Link to DBE Certification Application Form
Attachment 9 Small Business Program
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PALM SPRINGS INTERNATIONAL AIRPORT
DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
POLICY STATEMENT
Section 26.1, 26.23 Objectives/Policy Statement
The City of Palm Springs, Department of Aviation (hereinafter referred to as "the City"),
has established a Disadvantaged Business Enterprise ("DBE") Program (the "Program"
or the "DBE Program") in accordance with regulations of the U.S. Department of
Transportation ("DOT"), 49 Code of Federal Regulations ("CFR") Part 26, as such
regulations may be amended from time to time (the "Regulations"). The City owns and
operates Palm Springs International Airport ("PSP"). The City is the recipient of federal
Airport Improvement Program funds and has signed airport grant assurances that it will
comply with 49 CFR Part 26.
It is the policy of the City to ensure that DBEs as defined in Part 26, have an equal
opportunity to receive and participate in DOT assisted contracts. It is also the City's
policy:
1. To ensure nondiscrimination in the award and administration of DOT assisted
contracts;
2. To create a level playing field on which DBEs can compete fairly for DOT
assisted contracts;
3. To ensure that the DBE Program is narrowly tailored in accordance with the
Regulations and other applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards
are permitted to participate as DBEs;
5. To help remove barriers to the participation of DBEs in DOT assisted
contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and
procurement activities;
7. To assist the development of firms that can compete successfully in the
market place outside the DBE Program; and
8. To provide appropriate flexibility to the City in establishing and providing
opportunities for DBEs.
Thomas Nolan, Executive Director of Aviation, is responsible for ensuring PSP's
adherence to this policy. PSP's Airport Administration Manager, Mark Jucht, has been
designated as PSP's DBE Liaison Officer (the 'DBELO"). As the DBELO, Mr. Jucht
is responsible for implementing all aspects of the Program, as provided in this Plan.
Implementation of the DBE Program is accorded the same priority as compliance with
all other legal obligations incurred by PSP in its financial assistance agreements
with the United States Department of Transportation ("DOT"). The DBELO has
disseminated this policy statement to the Commission Members of PSP and all of
the components of PSP's organization, specifically those departments within PSP
that are involved in the procurement and management of construction and
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procurement contracts. PSP has also distributed this statement to DBE and non-DBE
businesses that perform work for PSP on DOT assisted contracts and this statement is
included all DOT assisted contracts. This Program is submitted to the Federal
Aviation Administration ("FAA') for approval pursuant to the Regulations. This
Program will be modified by PSP to the extent required to obtain such approval.
If there are any questions or need for further information regarding this Program,
please contact Mark Jucht, the DBELO, by telephone at (760) 318-3808.
Date Thomas Nolan
Executive Director, Airport
Date David H. Ready, Esq., Ph.D.
City Manager
APPROVED AS TO FORM
City Attorney
Date
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SUBPART A — GENERAL REQUIREMENTS
Section 26.1 Objectives
The objectives of the City's DBE Program are:
1 . To ensure nondiscrimination in the award and administration of DOT assisted
contracts;
2. To create a level playing field on which DBEs can compete fairly for DOT
assisted contracts;
3. To ensure that the DBE Program is narrowly tailored in accordance with the
Regulations and other applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards
are permitted to participate as DBEs;
5. To help remove barriers to the participation of DBEs in DOT assisted
contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and
procurement activities;
7. To assist the development of firms that can compete successfully in the
market place outside the DBE Program; and
8. To provide appropriate flexibility to the City in establishing and providing
opportunities for DBEs.
Section 26.3 Applicability
Palm Springs International Airport (PSP) is the recipient of Airport Improvement Funds
authorized by 49 U.S.C. 47101, et seq., therefore 49 CFR part 26 applies to the City.
Section 26.5 Definitions
The City will use terms in this program that have the meaning defined in Section 26.5, a
copy of which is included as Attachment 1. A link to the full regulation is provided in
Attachment 2.
Section 26.7 Non-discrimination Requirements
The City will never exclude any person from participation in, deny any person the
benefits of, or otherwise discriminate against anyone in connection with the award and
performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex,
or national origin.
In administering this DBE Program, the City will not, directly or through contractual or
other arrangements, use criteria or methods of administration that have the effect of
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defeating or substantially impairing accomplishment of the objectives of the DBE
program with respect to individuals of a particular race, color, sex, or national origin.
Section 26.11 Record Keeping Requirements
Reporting to DOT: 26.11(b)
The City will continue to provide data about its DBE Program to the Federal Aviation
Administration ("FAA") as directed by DOT.
The City will report DBE participation to DOT/FAA as follows.
The City will transmit to FAA annually on December 1st, the "Uniform Report of DBE
Awards or Commitments and Payments" form, found in Appendix B of 49 CFR part
26. The City will also report the DBE contractor firm information either on the FAA
DBE Contractor's Form or another similar format.
Bidders List: 26.11(c)
The City will create and maintain a bidders list. The purpose of the list is to provide the
most accurate data possible regarding DBE and non-DBE contractors and
subcontractors who seek to work on the City's DOT assisted contracts for use in setting
the City's overall DBE goals. The bidders list will include the name, address, DBE and
non-DBE status, age of firm, and annual gross receipts range of all firms who seek to
work on the City's DOT assisted contracts.
The City will collect this information at the time of bid submission utilizing the form
attached as Attachment 4.
Section 26.13 Federal Financial Assistance Agreement
The City has signed the following assurances, applicable to all DOT assisted contracts
and their administration:
Assurance: 26.13(a)
Each financial assistance agreement the City signs with DOT/FAA will include the
following assurance:
The City shall not discriminate on the basis of race, color, national origin, or sex
in the award and performance of any DOT assisted contract or in the
administration of its DBE program or the requirements of 49 CFR part 26. The
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City shall take all necessary and reasonable steps under 49 CFR part 26 to
ensure nondiscrimination in the award and administration of DOT assisted
contracts. The City's DBE Program, as required by 49 CFR part 26 and as
approved by DOT, is incorporated by reference in this agreement.
Implementation of this program is a legal obligation and failure to carry out its
terms shall be treated as a violation of this agreement. Upon notification to the
City of its failure to carry out its approved program, the Department may impose
sanctions as provided for under 49 CFR part 26 and may, in appropriate cases,
refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud
Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
Contract Assurance: 26.13(b)
The City will ensure that the following clause is included in each contract between the
City and a prime contractor and will require that each prime contractor include such
clause in any subcontract the prime contractor may sign with a subcontractor:
The contractor, sub recipient or subcontractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this contract. The contractor
shall carry out applicable requirements of 49 CFR part 26 in the award and
administration of DOT-assisted contracts. Failure by the contractor to carry out these
requirements may be a material breach of this contract, which may result in the
termination of this contract or such other remedy as the City deems appropriate, which
may include, but is not limited to: (1) Withholding monthly progress payments; (2)
Assessing sanctions; (3) Liquidated damages; and/or (4) Disqualifying the contractor
from future bidding as non-responsible.
SUBPART B - ADMINISTRATIVE REQUIREMENTS
Section 26.21 DBE Program Updates
The City is required to have a DBE program meeting the requirements of this part as it
will receive grants for airport planning or development and will award prime contracts,
the cumulative total value of which exceeds $250,000 in FAA funds in a federal fiscal
year. The City is not eligible to receive DOT financial assistance unless DOT has
approved its DBE Program and the City is in compliance with it and this part. The City
will continue to carry out its Program until all funds from DOT financial assistance have
been expended. The City is not required to submit regular updates of its DBE Program,
as long as the City remains in compliance. However, the City will submit significant
changes in the Program to the FAA for approval.
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Section 26.23 Policy Statement
The Policy Statement is set forth on pages 1 and 2 of this DBE Program.
Section 26.25 DBE Liaison Officer (DBELO)
The following individual has been designated as the City's DBE Liaison Officer
("DBELO"):
Mark Jucht
Airport Administration Manager
Palm Springs International Airport
3400 East Tahquitz Canyon Way
Palm Springs, CA 92262
markjucht@palmspringsca.gov
(760) 318-3808
In that capacity, the DBELO is responsible for implementing all aspects of the DBE
Program and ensuring that the City complies with the provisions of 49 CFR Part 26.
The DBELO has direct, independent access to PSP's Executive Director concerning
DBE Program matters. An organization chart displaying the DBELO's position in the
organization is found in Attachment 3 to this Program.
The DBELO is responsible for developing, implementing and monitoring the DBE
Program, in coordination with other appropriate employees. The duties and
responsibilities of the DBELO include the following:
1. Gathers and reports statistical data and other information as required by
DOT.
2. Reviews third party contracts and purchase requisitions for compliance with
this program.
3. Works with all airport departments to set overall annual goals.
4. Ensures that bid notices and requests for proposals are available to DBEs in
a timely manner.
5. Identifies contracts and procurements so that DBE goals are included in
solicitations (both race-neutral methods and contract specific goals) and
monitors results.
6. Analyzes the Airport's progress toward attainment and identifies ways to
improve progress.
7. Participates in pre-bid meetings.
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8. Advises the Executive Director on DBE matters and achievement.
9. Determines contractor compliance with good faith efforts.
10.Provides DBEs with information and assistance in preparing bids, obtaining
bonding and insurance.
11.Plans and participates in DBE training seminars.
12.Acts as liaison to the Uniform Certification Process.
13.Provides outreach to DBEs and community organizations to advise them of
opportunities.
Section 26.27 DBE Financial Institutions
There are currently no certified DBE financial institutions listed in the State of California
Unified Certification Program DBE directory. The City will review the DBE directory
periodically, not less than quarterly, to determine if any DBE financial institutions have
been added to the directory. If a firm or firms have been added, the City will explore
the full extent of services offered by any such financial institutions and make
reasonable efforts to use these institutions, and to encourage prime contractors on
DOT assisted contracts to make use of these institutions.
Section 26.29 Prompt Payment Mechanisms
The City has established, as part of its DBE Program, a contract clause to require
prime contractors to pay subcontractors for satisfactory performance of their contracts
no later than 30 days from receipt of each payment made to the prime contractor.
In addition, the City will include in its contract language a requirement for prompt and
full payment of retainage from the prime contractor to the subcontractor within 30 days
after the subcontractor's work is satisfactorily completed. The City will hold retainage
from prime contractors and provide for prompt and regular incremental acceptances of
portions of the prime contract, pay retainage to prime contractors based on these
acceptances, and require a contract clause obligating the prime contractor to pay all
retainage owed to the subcontractor for satisfactory completion of the accepted work
within 30 days after payment to the prime contractor.
The City will consider a subcontractor's work is satisfactorily completed when all the
tasks called for in the subcontract have been accomplished and documented as
required by the City. When the City has made an incremental acceptance of a portion of
a prime contract, the work of a subcontractor covered by that acceptance is deemed to
be satisfactorily completed.
The City will include the following clause in each DOT assisted prime contract:
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The contractor agrees to pay each subcontractor under this prime contract for
satisfactory performance of its contract no later than 30 days from the receipt of
each payment the prime contractor receives from the City. The prime contractor
agrees further to return retainage payments to each subcontractor within 30 days
after the subcontractor's work is satisfactorily completed. Any delay or
postponement of payment from the above-referenced time frame may occur only
for good cause following the written approval of the City. This clause applies to
both DBE and non-DBE subcontractors.
Monitoring Payments to DBEs
The City will require in its contracts that prime contractors maintain records and
documents of payments to DBEs for three years following the performance of the
contract and that these records will be made available for inspection upon request by
any authorized representative of the City or DOT/FAA. This reporting requirement shall
also extend to any certified DBE subcontractor.
The City will perform interim audits of contract payments to DBEs. The audit will review
payments to DBE subcontractors to ensure that the actual amount paid to DBE
subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE
participation.
Section 26.31 Directory
The City uses the State of California Unified Certification Program ("CUCP") DBE
directory, maintained by the certifying agencies of the CUCP.
The directory lists the firm's name, address, phone number, and the type of work the
firm has been certified to perform as a DBE. In addition, the directory lists each type of
work for which a firm is eligible to be certified by using the most specific NAICS code
available to describe each type of work.
The CUCP's Directory is a real-time online database, automatically revised as firms are
added. A link to the CUCP Directory is found in Attachment 5.
Section 26.33 Over-concentration
The City has not identified that over-concentration exists in the types of work that DBEs
perform.
Section 26.35 Business Development Programs
The City has not established a business development program.
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Section 26.37 Monitoring and Enforcement Mechanisms
The City will utilize the following monitoring and enforcement mechanisms to ensure
compliance with 49 CFR Part 26.
1. The City will bring to the attention of DOT any false, fraudulent, or dishonest conduct
in connection with the program, so that DOT can take the steps (e.g., referral to the
Department of Justice for criminal prosecution, referral to the DOT Inspector
General, action under suspension and debarment or Program Fraud and Civil
Penalties rules) provided in 26.107.
2. The City will implement similar action under its own legal authorities. Attachment 7
lists the regulation, provisions, and contract remedies available to us in the event of
non-compliance with the DBE regulation by a participant in the City's DBE Program.
3. The City will implement a monitoring and enforcement mechanism to ensure that
work committed to DBEs at contract award or subsequently(i.e., as the result of
modification to the contract) is actually performed by the DBEs to which the work
was committed.
4. The City will implement a monitoring and enforcement mechanism that will include
written certification that the City has reviewed contracting records and monitored
work sites for this purpose.
5. The City will implement a mechanism that will provide for a running tally of actual
DBE attainments (e.g., payment actually made to DBE firms), including a means of
comparing these attainments to commitments. This will be accomplished as follows:
a. Prime Contractors working on projects containing a DBE goal shall be required
by contract to file monthly reports listing contract work awarded to and performed
by DBE subcontractors/suppliers. These reports will be compared to bid
commitments and discrepancies or questions will be followed-up in writing by the
DBELO.
b. The DBELO or his designee and/or the Manager of Capital Projects will
periodically visit the job site to ensure that DBE firms listed in bid documents are
performing the work. These visits will be documented in the appropriate project
files.
c. DBEs will be required to verify the payment information reported by the Prime
Contractor. If there is a discrepancy reported by the DBE firm, the matter is
investigated through correspondence with the Prime Contractor and the DBE firm
and actual levels of participation are confirmed.
e. Once all information has been received from Prime Contractors and verified by
DBE firms, the information is recapped and compared to original commitments.
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In reports of DBE participation to DOT/FAA, the City will show both commitments
and attainments, as required by the DOT uniform reporting form.
Section 26.39 Fostering Small Business Participation
The City has created a Small Business element to structure contracting requirements to
facilitate competition by small business concerns, taking all reasonable steps to
eliminate obstacles to their participation, including unnecessary and unjustified bundling
of contract requirements that may preclude small business participation in procurements
as prime contractors or subcontractors.
The City's small business element is incorporated as Attachment 9 to this DBE
Program. The City will actively implement the program elements to foster small
business participation; doing so is a requirement of good faith implementation of the
City's DBE program.
SUBPART C — GOALS, GOOD FAITH EFFORTS, AND COUNTING
Section 26.43 Set-asides or Quotas
The City does not use quotas in any way in the administration of this DBE Program.
Section 26.45 Overall Goals
The City will establish an overall DBE goal covering a three-year federal fiscal year
period for PSP if the City anticipates awarding DOT/FAA funded prime contracts the
cumulative total value of which exceeds $250,000 at the airport during any one or more
of the reporting fiscal years within the three-year goal period. In accordance with
Section 26.45(f), the City will submit its Overall Three-Year DBE Goal to FAA by August
1 st as required by the established schedule below.
Airport Type Region Date Due Next Goal Due
Goal Period Goal Period
Small Hub Western-Pacific August 1, 2014 August 1, 2017
Prima 2015/201612017 2018/201912020
The DBE goals will be established in accordance with the 2-step process specified in 49
CFR Part 26.45. If the City does not anticipate awarding DOT/FAA funded prime
contracts the cumulative total value of which exceeds $250,000 during any of the years
within the three-year reporting period, the City will not develop an overall goal; however
this DBE Program will remain in effect and the City will seek to fulfill the objectives
outlined in 49 CFR Part 26.1.
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(c) Step 1. The first step is to determine the relative availability of DBEs in the
market area, "base figure". The City will use either DBE Directories and Census
Bureau Data, a Bidders List, a Disparity Study, the goal of another DOT recipient
or other alternative methods as a method to determine the City's base figure,
depending upon which data is most appropriate at the time that the goal is being
set. The second step is to adjust the "base figure" percentage from Step 1 so
that it reflects as accurately as possible the DBE participation the recipient would
expect in the absence of discrimination based on past participation, a disparity
study and/or information about barriers to entry to past competitiveness of DBEs
on Contracts.
If the City uses a bidders list, the City will do the following: Determine the number of
DBEs that have bid or quoted (successful and unsuccessful) on the City's DOT assisted
prime contracts or subcontracts in the past three years. Determine the number of all
businesses that have bid or quoted (successful and unsuccessful) on prime or
subcontracts in the same time period. Divide the number of DBE bidders and quoters
by the number of all businesses to derive a base figure for the relative availability of
DBEs in the relevant market. When using this approach, the City will establish a
mechanism (documented in goal submission) to directly capture data on DBE and non-
DBE prime and subcontractors that submitted bids or quotes on the City's DOT-assisted
contracts.
Any methodology the City chooses will be based on demonstrable evidence of local
market conditions and be designed to ultimately attain a goal that is rationally related to
the relative availability of DBEs in the City's market. The City understands that the
exclusive use of a list of prequalified contractors or plan holders, or a bidders list that
does not comply with the requirements of paragraph (c)(2) of this section (above), is not
an acceptable alternative means of determining the availability of DBEs.
(d) Step 2. Once the City has calculated a base figure, the City will examine all of
the evidence available in its jurisdiction to determine what adjustment, if any, is
needed to the base figure to arrive at the overall goal. If the evidence does not
suggest an adjustment is necessary, then no adjustment shall be made.
26.45 (g)(1) In establishing the overall goal, the City will provide for consultation and
publication. This includes consultation with minority, women's and general contractor
groups, community organizations, and other officials or organizations which could be
expected to have information concerning the availability of disadvantaged and non-
disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and
the City's efforts to establish a level playing field for the participation of DBEs. The
consultation will include a scheduled, direct, interactive exchange (e.g., a face-to-face
meeting, video conference, teleconference)with as many interested stakeholders as
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possible focused on obtaining information relevant to the City's goal setting process,
and it will occur before the City is required to submit its goal methodology for review
pursuant to paragraph (f) of this section. The City will document in its goal submission
the consultation process that the City engaged in. Notwithstanding paragraph (f)(4) of
this section, the City will not implement the proposed goal until the City has complied
with this requirement.
In addition, the City will publish a notice announcing the proposed overall goal before
submission on August 1 st. The City will post the notice on its website and may post it
in any other sources (e.g., minority-focused media, trade association publications). If
the proposed goal changes following review by the DOT/FAA, the revised goal will also
be posted on the City's website. The City will inform the public that the proposed overall
goal and its rationale are available for inspection during normal business hours at its
principal office and that the City and DOT/FAA will accept comments on the goals for 30
days from the date of the notice. Notice of the comment period will include the
addresses to which comments may be sent and where the proposal may be reviewed.
The public comment period will not extend the August 1st deadline.
The City's Overall Three-Year DBE Goal submission to DOT/FAA will include a
summary of information and comments received, if any, during this public participation
process and the City's responses.
The City will begin using its overall goal on October 1 of the reporting period, unless the
City has received other instructions from DOT/FAA.
Section 26.45 (e) - Project Goals
If permitted or required by the FAA, the City will express its overall goals as a
percentage of funds for a particular grant or project or group of grants and/or projects,
including entire projects. Like other overall goals, a project goal may be adjusted to
reflect changed circumstances, with the concurrence of DOT/FAA. A project goal is an
overall goal, and must meet all the substantive and procedural requirements of this
section pertaining to overall goals. A project goal covers the entire length of the project
to which it applies. The project goal should include a projection of the DBE participation
anticipated to be obtained during each fiscal year covered by the project goal. The
funds for the project to which the project goal pertains will be separated from the base
from which the City's regular overall goal, applicable to contracts not part of the project
covered by a project goal, is calculated.
If the City establishes a goal on a project basis, the City will begin using its goal by the
time of the first solicitation for a DOT assisted contract for the project.
Section 26.45(f) - Prior Operating Administration Concurrence
The City understands that it is not required to obtain prior DOT/FAA concurrence with its
overall goal. However, if the review suggests that the overall goal has not been
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correctly calculated or that the method for calculating goals is inadequate, DOT/FAA
may, after consulting with the City, adjust the overall goal or require that the City do so.
The adjusted overall goal is binding. In evaluating the adequacy or soundness of the
methodology used to derive the overall goal, DOT/FAA will be guided by the goal setting
principles and best practices identified by the DOT in guidance issued pursuant to §
26.9.
A description of the methodology to calculate the overall goal and the goal calculations
can be found in Attachment 6 to this program.
Section 26.47 Failure to Meet Overall Goals
The City will maintain an approved DBE Program and overall DBE goal, if applicable as
well as administer its DBE Program in good faith to be considered to be in compliance
with this part.
If the City awards and commitments shown on its Uniform Report of Awards or
Commitments and Payments at the end of any fiscal year are less than the overall goal
applicable to that fiscal year, the City will do the following in order to be regarded by the
Department as implementing the DBE Program in good faith:
(1)Analyze in detail the reasons for the difference between the overall goal and the
awards and commitments in that fiscal year.
(2) Establish specific steps and milestones to correct the problems The City has
identified in the analysis and to enable the City to meet fully the goal for the new fiscal
year;
(3) The City will prepare, within 90 days of the end of the fiscal year, the analysis and
corrective actions developed under paragraph (c)(1) and (2) of this section. The City will
retain a copy of analysis and corrective actions in its records for a minimum of three
years, and will make such records available to FAA upon request.
Section 26.51(a-c) Breakout of Estimated Race-Neutral
& Race-Conscious Participation
(a) The City will meet the maximum feasible portion of its overall goal by using race-
neutral means of facilitating race-neutral DBE participation. Race-neutral DBE
participation includes any time a DBE wins a prime contract through customary
competitive procurement procedures or is awarded a subcontract on a prime contract
that does not carry a DBE contract goal.
Race-neutral means include, but are not limited to the following:
(1) Arranging solicitations, times for the presentation of bids, quantities,
specifications, and delivery schedules in ways that facilitate participation by
DBEs and other small businesses and by making contracts more accessible to
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small businesses, by means such as those provided under §26.39 of this part.
(2) Providing assistance in overcoming limitations such as inability to obtain
bonding or financing (e.g., by such means as simplifying the bonding process,
reducing bonding requirements, eliminating the impact of surety costs from bids,
and providing services to help DBEs, and other small businesses, obtain bonding
and financing);
(3) Providing technical assistance and other services;
(4) Carrying out information and communications programs on contracting
procedures and specific contract opportunities (e.g., ensuring the inclusion of
DBEs, and other small businesses; ensuring the dissemination to bidders on
prime contracts of lists of potential subcontractors; provision of information in
languages other than English, where appropriate);
(5) Implementing a supportive services program to develop and improve
immediate and long-term business management, record keeping, and financial
and accounting capability for DBEs and other small businesses;
(6) Providing services to help DBEs, and other small businesses, improve long-
term development, increase opportunities to participate in a variety of kinds of
work, handle increasingly significant projects, and achieve eventual self-
sufficiency;
(7) Establishing a program to assist new, start-up firms, particularly in fields in
which DBE participation has historically been low;
(8) Ensuring distribution of the CUCP DBE directory, through print and electronic
means, to the widest feasible universe of potential prime contractors; and
(9)Assisting DBEs, and other small businesses, to develop their capability to
utilize emerging technology and conduct business through electronic media.
Attachment 6 (Report of Overall Goals) provides an estimate of the amount of the goal
estimated to be met through race-neutral participation vs. race-conscious measures.
The report also provides information relative to the basis for the estimated breakout.
Section 26.51(d-g) Contract Goals
The City will use contract goals to meet any portion of the overall goal it does not project
being able to meet using race-neutral means. Contract goals are established so that,
over the period to which the overall goal applies, they will cumulatively result in meeting
any portion of the overall goal that is not projected to be met through the use of
race-neutral means.
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The City will establish contract goals only on those DOT assisted contracts that have
subcontracting possibilities. Contract goals need not be established on every such
contract, and the size of contract goals will be adapted to the circumstances of each
such contract (e.g., type and location of work, availability of DBEs to perform the
particular type of work.)
The City will express contract goals as a percentage of the total amount of a DOT
assisted contract. This will be accomplished by converting the percentage goal
calculated based on the federally funded portion of the contract to a percentage that
would equal the same goal based on the total contract dollars. For example, if a goal is
calculated at 10% of the federally funded portion of the contract and the contract is 75%
funded using federal funds, the contract goal would be expressed as 7.5% (10% X
75%).
If the approved projection under paragraph (c) of this section estimates that the City can
meet the entire overall goal for a given year through race-neutral means, the City will
implement its program without setting contract goals during that year, unless it becomes
necessary in order meet the overall goal.
Section 26.53 Good Faith Efforts Procedures
Demonstration of good faith efforts (26.53(a) & (c))
The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can
demonstrate that it has done so either by meeting the contract goal or documenting
good faith efforts. Examples of good faith efforts are found in Appendix A to Part 26.
The City shall determine whether a bidder/offeror who has not met the contract goal has
documented sufficient good faith efforts to be regarded as responsive. The City will
ensure that all information is complete and accurate and adequately documents the
bidder/offeror's good faith efforts before the City commits to the performance of the
contract by the bidder/offeror.
Information to be submitted (26.53(b))
In our solicitations for DOT/FAA-assisted contracts for which a contract goal has been
established, the City will require the following:
(1) Award of the contract will be conditioned on meeting the requirements of this
section;
(2) All bidders or offerors will be required to submit the following information to
the recipient, at the time provided in paragraph (b)(3) of this section:
(i) The names and addresses of DBE firms that will participate in the
contract;
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(ii) A description of the work that each DBE will perform. To count toward
meeting a goal, each DBE firm must be certified in a NAICS code applicable
to the kind of work the firm would perform on the contract;
(iii) The dollar amount of the participation of each DBE firm participating;
(iv) Written documentation of the bidder/offeror's commitment to use a DBE
subcontractor whose participation it submits to meet a contract goal; and
(v) Written documentation that each listed DBE firm that it is participating in
the contract in the kind and amount of work provided in the prime contractor's
commitment.
(vi) If the contract goal is not met, evidence of good faith efforts (see
Appendix A of this part). The documentation of good faith efforts must
include copies of each DBE and non-DBE subcontractor quote submitted to
the bidder when a non-DBE subcontractor was selected over a DBE for work
on the contract; and
(3) The City will require that the bidder/offer or present the information required
by paragraph (b)(2) of this section no later than 7 days after bid opening as a
matter of responsibility. The 7 days shall be reduced to 5 days beginning
January 1, 2017.
Provided that, in a negotiated procurement, including a design-build
procurement, the bidder/offeror may make a contractually binding commitment to
meet the goal at the time of bid submission or the presentation of initial proposals
but provide the information required by paragraph (b)(2) of this section before the
final selection for the contract is made by the recipient.
Administrative reconsideration (26.53(d)
Within 3 business days of being informed by the City that it is not responsive because it
has not documented sufficient good faith efforts, a bidder/offeror may request
administrative reconsideration. Bidder/offerors should make this request in writing to:
Mark Jucht
Airport Administration Manager
Palm Springs International Airport
3400 East Tahquitz Canyon Way
Palm Springs, CA 92262
mark.jucht@palmspringsca.gov
The DBELO shall appoint a reconsideration official to review the good faith efforts of the
bidder/offeror. The reconsideration official will not have played any role in the original
determination that the bidder/offeror did not document sufficient good faith efforts.
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As part of this reconsideration, the bidder/offeror will have the opportunity to provide
written documentation or argument concerning the issue of whether it met the goal or
made adequate good faith efforts to do so. The bidder/offeror will have the opportunity
to meet in person with the reconsideration official to discuss the issue of whether it met
the goal or made adequate good faith efforts to do so. The City will send the
bidder/offeror a written decision on reconsideration, explaining the basis for finding that
the bidder did or did not meet the goal or make adequate good faith efforts to do so.
The result of the reconsideration process is not administratively appealable to the
Department of Transportation.
Good Faith Efforts procedures in situations when there are contract goals (26.53(f)(g)
The City will include in each prime contract a provision stating:
The contractor shall utilize the specific DBEs listed to perform the work and
supply the materials for which each is listed unless the contractor obtains the
City's written consent as provided in this paragraph 26.53(f); and
That, unless the City's consent is provided under this paragraph 26.53(f), the
contractor shall not be entitled to any payment for work or material unless it is
performed or supplied by the listed DBE.
The City will require the contractor that is awarded the contract to make available upon
request a copy of all DBE subcontracts. The subcontractor shall ensure that all
subcontracts or an agreement with DBEs to supply labor or materials require that the
subcontract and all lower tier subcontractors be performed in accordance with this part's
provisions.
In this situation, the City will require the prime contractor to obtain the City's prior
approval of the substitute DBE and to provide copies of new or amended subcontracts,
or documentation of good faith efforts.
The City will require that a prime contractor not terminate a DBE subcontractor listed in
response to paragraph (b)(2) of this section (or an approved substitute DBE firm)
without its prior written consent. This includes, but is not limited to, instances in which a
prime contractor seeks to perform work originally designated for a DBE subcontractor
with its own forces or those of an affiliate, a non-DBE firm, or with another DBE firm.
The City will provide such written consent only if the City agrees, for reasons stated in
its concurrence document, that the prime contractor has good cause to terminate the
DBE firm. For purposes of this paragraph, good cause includes the following
circumstances:
1) The listed DBE subcontractor fails or refuses to execute a written contract;
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2) The listed DBE subcontractor fails or refuses to perform the work of its
subcontract in a way consistent with normal industry standards, provided
however, that good cause does not exist if the failure or refusal of the DBE
subcontractor to perform its work on the subcontract results from the bad faith
or discriminatory action of the prime contractor;
3) The listed DBE subcontractor fails or refuses to meet the prime contractor's
reasonable, non-discriminatory bond requirements.
4) The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit
unworthiness;
5) The listed DBE subcontractor is ineligible to work on public works projects
because of suspension and debarment proceedings pursuant to 2 CFR Parts
180, 215 and 1,200 or applicable state law;
6) The City has determined that the listed DBE subcontractor is not a
responsible contractor;
7) The listed DBE subcontractor voluntarily withdraws from the project and
provides to us written notice of its withdrawal;
8) The listed DBE is ineligible to receive DBE credit for the type of work
required;
9) A DBE owner dies or becomes disabled with the result that the listed DBE
contractor is unable to complete its work on the contract;
10)Other documented good cause that the City has determined compels the
termination of the DBE subcontractor. Provided, that good cause does not
exist if the prime contractor seeks to terminate a DBE it relied upon to obtain
the contract so that the prime contractor can self-perform the work for which
the DBE contractor was engaged or so that the prime contractor can
substitute another DBE or non-DBE contractor after contract award.
Before transmitting to the City its request to terminate and/or substitute a DBE
subcontractor, the prime contractor must give notice in writing to the DBE subcontractor,
with a copy to the City, of its intent to request to terminate and/or substitute, and the
reason for the request.
The prime contractor must give the DBE five days to respond to the prime contractor's
notice and advise us and the contractor of the reasons, if any, why it objects to the
proposed termination of its subcontract and why the City should not approve the prime
contractor's action. If required in a particular case as a matter of public necessity (e.g.,
safety), the City may provide a response period shorter than five days.
In addition to post-award terminations, the provisions of this section apply to pre-award
deletions of or substitutions for DBE firms put forward by offerors in negotiated
procurements.
The City will require a contractor to make good faith efforts to replace a DBE that is
terminated or has otherwise failed to complete its work on a contract with another
certified DBE. These good faith efforts shall be directed at finding another DBE to
perform at least the same amount of work under the contract as the DBE that was
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terminated, to the extent needed to meet the contract goal that the City established for
the procurement. Good faith efforts shall be documented by the contractor. If the City
requests documentation from the contractor under this provision, the contractor shall
submit the documentation to us within 7 days, which may be extended for an additional
7 days if necessary at the request of the contractor, and the recipient shall provide a
written determination to the contractor stating whether or not good faith efforts have
been demonstrated.
The City will include in each prime contract the contract clause required by § 26.13(b)
stating that failure by the contractor to carry out the requirements of this part is a
material breach of the contract and may result in the termination of the contract or such
other remedies set forth in that section that the City deems appropriate if the prime
contractor fails to comply with the requirements of this section.
If the contractor fails or refuses to comply in the time specified, the City may issue an
order stopping all or part of payment/work until satisfactory action has been taken. If
the contractor still fails to comply, the City may issue a termination for default
proceeding.
Sample Bid Specification:
The requirements of 49 CFR Part 26, Regulations of the U.S. Department of
Transportation, apply to this contract. It is the policy of the City to practice
nondiscrimination based on race, color, sex, or national origin in the award or
performance of this contract. All firms qualifying under this solicitation are
encouraged to submit bids/proposals. Award of this contract will be conditioned
upon satisfying the requirements of this bid specification. These requirements
apply to all bidders/offerors, including those who qualify as a DBE. A DBE
contract goal of_ percent has been established for this contract. The
bidder/offeror shall make good faith efforts, as defined in Appendix A, 49 CFR
Part 26 (Attachment 2), to meet the contract goal for DBE participation in the
performance of this contract.
The bidder/offeror will be required to submit the following information: (1) the
names and addresses of DBE firms that will participate in the contract; (2) a
description of the work that each DBE firm will perform. To count toward meeting
a goal, each DBE firm must be certified in a NAICS code applicable to the kind of
work the firm would perform on the contract; (3) the dollar amount of the
participation of each DBE firm participating; (4) Written documentation of the
bidder/offeror's commitment to use a DBE subcontractor whose participation it
submits to meet the contract goal; and (5)Written confirmation from each listed
DBE firm that it is participating in the contract in the kind and amount of work
provided in the prime contractor's commitment; (6) if the contract goal is not met,
evidence of good faith efforts.
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Section 26.55 Counting DBE Participation
The City will count DBE participation toward overall and contract goals as provided in 49
CFR 26.55. The City will not count the participation of a DBE subcontract toward a
contractor's final compliance with its DBE obligations on a contract until the amount
being counted has actually been paid to the DBE.
If the firm is not currently certified as a DBE in accordance with the standards of subpart
D of this part at the time of the execution of the contract, the City will not count the firm's
participation toward any DBE goals, except as provided for in 26.870).
SUBPART D — CERTIFICATION STANDARDS
Section 26.61 — 26.73 Certification Process
The California Unified Certification program (CUCP) processes all DBE certification
applications. A link to the CUCP Certification Application is found in Attachment 8.
SUBPART E — CERTIFICATION PROCEDURES
Section 26.81 Unified Certification Programs
The City is a non-certifying member of the California Unified Certification Program
(CUCP) administered by Caltrans. The CUCP meets all of the requirements of this
section.
SUBPART F — COMPLIANCE AND ENFORCEMENT
Section 26.109 Information, Confidentiality, Cooperation and
intimidation or retaliation
The City will safeguard from disclosure to third parties information that may reasonably
be regarded as confidential business information, consistent with Federal, state, and
local law.
Notwithstanding any provision of Federal or state law, the City will not release any
information that may reasonably be construed as confidential business information to
any third party without the written consent of the firm that submitted the information.
All participants in the Department's DBE program (including, but not limited to,
recipients, DBE firms and applicants for DBE certification, complainants and appellants,
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and contractors using DBE firms to meet contract goals) shall be required to cooperate
fully and promptly with DOT and recipient compliance reviews, certification reviews,
investigations, and other requests for information. Failure to do so shall be a ground for
appropriate action against the party involved (e.g., with respect to recipients, a finding of
noncompliance; with respect to DBE firms, denial of certification or removal of eligibility
and/or suspension and debarment; with respect to a complainant or appellant, dismissal
of the complaint or appeal; with respect to a contractor which uses DBE firms to meet
goals, findings of non-responsibility for future contracts and/or suspension and
debarment).
The City, contractor, or any other participant in the program will not intimidate, threaten,
coerce, or discriminate against any individual or firm for the purpose of interfering with
any right or privilege secured by this part or because the individual or firm has made a
complaint, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this part. If the City violates this prohibition, the City is in
noncompliance with this part.
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ATTACHMENTS
Attachment 1 49 CFR Part 26 Definitions
Attachment 2 49 CFR Part 26: Website Link
Attachment 3 Organizational Chart
Attachment 4 Bidders List Collection Form
Attachment 5 Link to DBE Directory
Attachment 6 Overall Goal Calculations
Attachment 7 DBE Monitoring and Enforcement Mechanisms
Attachment 8 Link to DBE Certification Application Form
Attachment 9 State's UCP Agreement
Attachment 10 Small Business Program
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ATTACHMENT
Definitions from the Regulation: 49 CFR Part 26
§26.5 What do the terms used in this part mean?
Affiliation has the same meaning the term has in the Small Business Administration (SBA)
regulations, 13 CFR part 121.
(1) Except as otherwise provided in 13 CFR part 121, concerns are affiliates of each other
when, either directly or indirectly:
(i) One concern controls or has the power to control the other; or
(ii)A third party or parties controls or has the power to control both; or
(III)An identity of interest between or among parties exists such that affiliation may be
found.
(2) In determining whether affiliation exists, it is necessary to consider all appropriate
factors, including common ownership, common management, and contractual relationships.
Affiliates must be considered together in determining whether a concern meets small business
size criteria and the statutory cap on the participation of firms in the DBE program.
Alaska Native means a citizen of the United States who is a person of one-fourth degree or
more Alaskan Indian (including Tsimshian Indians not enrolled in the Metlaktla Indian
Community), Eskimo, or Aleut blood, or a combination of those bloodlines. The term includes, in
the absence of proof of a minimum blood quantum, any citizen whom a Native village or Native
group regards as an Alaska Native if their father or mother is regarded as an Alaska Native.
Alaska Native Corporation (ANC) means any Regional Corporation, Village Corporation,
Urban Corporation, or Group Corporation organized under the laws of the State of Alaska in
accordance with the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et
seq.).
Assets mean all the property of a person available for paying debts or for distribution,
including one's respective share of jointly held assets. This includes, but is not limited to, cash
on hand and in banks, savings accounts, IRA or other retirement accounts, accounts receivable,
life insurance, stocks and bonds, real estate, and personal property.
Business, business concern or business enterprise means an entity organized for profit
with a place of business located in the United States, and which operates primarily within the
United States or which makes a significant contribution to the United States economy through
payment of taxes or use of American products, materials, or labor.
Compliance means that a recipient has correctly implemented the requirements of this part.
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Contingent Liability means a liability that depends on the occurrence of a future and
uncertain event. This includes, but is not limited to, guaranty for debts owed by the applicant
concern, legal claims and judgments, and provisions for federal income tax.
Contract means a legally binding relationship obligating a seller to furnish supplies or
services (including, but not limited to, construction and professional services) and the buyer to
pay for them. For purposes of this part, a lease is considered to be a contract.
Contractor means one who participates, through a contract or subcontract(at any tier), in a
DOT-assisted highway, transit, or airport program.
Days mean calendar days. In computing any period of time described in this part, the day
from which the period begins to run is not counted, and when the last day of the period is a
Saturday, Sunday, or Federal holiday, the period extends to the next day that is not a Saturday,
Sunday, or Federal holiday. Similarly, in circumstances where the recipient's offices are closed
for all or part of the last day, the period extends to the next day on which the agency is open.
Department or DOT means the U.S. Department of Transportation, including the Office of
the Secretary, the Federal Highway Administration (FHWA), the Federal Transit Administration
(FTA), and the Federal Aviation Administration (FAA).
Disadvantaged business enterprise or DBE means a for-profit small business concern—
(1)That is at least 51 percent owned by one or more individuals who are both socially and
economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is
owned by one or more such individuals; and
(2)Whose management and daily business operations are controlled by one or more of the
socially and economically disadvantaged individuals who own it.
DOT-assisted contract means any contract between a recipient and a contractor(at any
tier)funded in whole or in part with DOT financial assistance, including letters of credit or loan
guarantees, except a contract solely for the purchase of land.
Good faith efforts means efforts to achieve a DBE goal or other requirement of this part
which, by their scope, intensity, and appropriateness to the objective, can reasonably be
expected to fulfill the program requirement.
Home state means the state in which a DBE firm or applicant for DBE certification
maintains its principal place of business.
Immediate family member means father, mother, husband, wife, son, daughter, brother,
sister, grandfather, grandmother, father-in-law, mother-in-law, sister-in-law, brother-in-law, and
domestic partner and civil unions recognized under State law.
Indian tribe means any Indian tribe, band, nation, or other organized group or community of
Indians, including any ANC, which is recognized as eligible for the special programs and
services provided by the United States to Indians because of their status as Indians, or is
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recognized as such by the State in which the tribe, band, nation, group, or community resides.
See definition of"tribally-owned concern" in this section.
Joint venture means an association of a DBE firm and one or more other firms to carry out
a single, for-profit business enterprise, for which the parties combine their property, capital,
efforts, skills and knowledge, and in which the DBE is responsible for a distinct, clearly defined
portion of the work of the contract and whose share in the capital contribution, control,
management, risks, and profits of the joint venture are commensurate with its ownership
interest.
Liabilities mean financial or pecuniary obligations. This includes, but is not limited to,
accounts payable, notes payable to bank or others, installment accounts, mortgages on real
estate, and unpaid taxes.
Native Hawaiian means any individual whose ancestors were natives, prior to 1778, of the
area which now comprises the State of Hawaii.
Native Hawaiian Organization means any community service organization serving Native
Hawaiians in the State of Hawaii which is a not-for-profit organization chartered by the State of
Hawaii, is controlled by Native Hawaiians, and whose business activities will principally benefit
such Native Hawaiians.
Noncompliance means that a recipient has not correctly implemented the requirements of
this part.
Operating Administration or OA means any of the following parts of DOT: the Federal
Aviation Administration (FAA), Federal Highway Administration (FHWA), and Federal Transit
Administration (FTA). The "Administrator" of an operating administration includes his or her
designees.
Personal net worth means the net value of the assets of an individual remaining after total
liabilities are deducted. An individual's personal net worth does not include: The individual's
ownership interest in an applicant or participating DBE firm; or the individual's equity in his or
her primary place of residence. An individual's personal net worth includes only his or her own
share of assets held jointly or as community property with the individual's spouse.
Primary industry classification means the most current North American Industry
Classification System (NAICS) designation which best describes the primary business of a firm.
The NAICS is described in the North American Industry Classification Manual—United States,
which is available on the Internet at the U.S. Census Bureau Web
site:http://www.census.gov/eos1www1naics1.
Primary recipient means a recipient which receives DOT financial assistance and passes
some or all of it on to another recipient.
Principal place of business means the business location where the individuals who manage
the firm's day-to-day operations spend most working hours. If the offices from which
management is directed and where the business records are kept are in different locations, the
recipient will determine the principal place of business.
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Program means any undertaking on a recipient's part to use DOT financial assistance,
authorized by the laws to which this part applies.
Race-conscious measure or program is one that is focused specifically on assisting only
DBEs, including women-owned DBEs.
Race-neutral measure or program is one that is, or can be, used to assist all small
businesses. For the purposes of this part, race-neutral includes gender-neutrality.
Recipient is any entity, public or private, to which DOT financial assistance is extended,
whether directly or through another recipient, through the programs of the FAA, FHWA, or FTA,
or who has applied for such assistance.
Secretary means the Secretary of Transportation or his/her designee.
Set-aside means a contracting practice restricting eligibility for the competitive award of a
contract solely to DBE firms.
Small Business Administration or SBA means the United States Small Business
Administration.
SBA certified firm refers to firms that have a current, valid certification from or recognized
by the SBA under the 8(a) BD or SDB programs.
Small business concern means, with respect to firms seeking to participate as DBEs in
DOT-assisted contracts, a small business concern as defined pursuant to section 3 of the Small
Business Act and Small Business Administration regulations implementing it (13 CFR part 121)
that also does not exceed the cap on average annual gross receipts specified in §26.65(b).
Socially and economically disadvantaged individual means any individual who is a citizen
(or lawfully admitted permanent resident) of the United States and who has been subjected to
racial or ethnic prejudice or cultural bias within American society because of his or her identity
as a members of groups and without regard to his or her individual qualities. The social
disadvantage must stem from circumstances beyond the individual's control.
(1)Any individual who a recipient finds to be a socially and economically disadvantaged
individual on a case-by-case basis. An individual must demonstrate that he or she has held
himself or herself out, as a member of a designated group if you require it.
(2)Any individual in the following groups, members of which are rebuttably presumed to be
socially and economically disadvantaged:
(i) "Black Americans," which includes persons having origins in any of the Black racial groups of
Africa;
(ii) "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban,
Dominican, Central or South American, or other Spanish or Portuguese culture or origin,
regardless of race;
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(iii) "Native Americans,"which includes persons who are enrolled members of a federally or
State recognized Indian tribe, Alaska Natives, or Native Hawaiians;
(iv) "Asian-Pacific Americans,"which includes persons whose origins are from Japan,
China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand,
Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the
Pacific Islands (Republic of Palau), Republic of the Northern Marianas Islands, Samoa, Macao,
Fiji, Tonga, Kirbati, Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong;
(v) "Subcontinent Asian Americans,"which includes persons whose origins are from India,
Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;
(vi)Women;
(vii)Any additional groups whose members are designated as socially and economically
disadvantaged by the SBA, at such time as the SBA designation becomes effective.
(3) Being born in a particular country does not, standing alone, mean that a person is
necessarily a member of one of the groups listed in this definition.
Spouse means a married person, including a person in a domestic partnership or a civil
union recognized under State law.
Transit vehicle manufacturer means any manufacturer whose primary business purpose is
to manufacture vehicles specifically built for public mass transportation. Such vehicles include,
but are not limited to: Buses, rail cars, trolleys, ferries, and vehicles manufactured specifically
for paratransit purposes. Producers of vehicles that receive post-production alterations or
retrofitting to be used for public transportation purposes(e.g., so-called cutaway vehicles, vans
customized for service to people with disabilities) are also considered transit vehicle
manufacturers. Businesses that manufacture, mass-produce, or distribute vehicles solely for
personal use and for sale "off the lot" are not considered transit vehicle manufacturers.
Tribally-owned concern means any concern at least 51 percent owned by an Indian tribe as
defined in this section.
You refers to a recipient, unless a statement in the text of this part or the context requires
otherwise (i.e., 'You must do XYZ means that recipients must do XYZ).
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ATTACHMENT
49 CFR PART 26 MAY BE FOUND ONLINE AT:
HTTP://VVWW.ECFR.GOV/CGI-BIN/TEXT-IDX?TPL=/ECFRBROWSE/TITLE49149CFR26 MAIN 02.TPL
Page 28 of 49
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ATTACHMENT
Bidder's List Collection Form
DBE or Non-
Firm DBE Status
Prime Contractor-` -verify via Annual Gross Receipts
Address/ Age of Firm
Firm Name California's
Phone# ' UCP
Directory)
❑ Less than 1 year ❑ Less than$500K
❑ 1-3 years ❑ $50OK-$1 million
❑ 4-7 years ❑ $1-2 million
❑ 8-10 years ❑ $2-5 million
❑ More than 10 years ❑ Greaterthan$5 million
NOMIEDLessthanlyear
❑ Less t0$500K
❑ 1-3years ❑ $500K-$lmillion
❑ 4-7 years ❑ $1-2 million
❑ 8-10 years ❑ $2-5million
❑ More than 10 years ❑ Greater than $5 million
❑ Less than 1 year ❑ Less than$500K
❑ 1-3years ❑ $500K-$lmillion
❑ 4-7 years ❑ $1-2 million
❑ 8-10 years ❑ $2-5 million
❑ More than 10 years ❑ Greater than$5 million
❑ Less than 1 year ❑ Less than$500K
❑ 1-3years ❑ $500K-$lmillion
❑ 4-7 years ❑ $1-2 million
❑ 8-10 years ❑ $2-5 million
❑ More than 10 years ❑ Greater than$5 million
❑ Less than 1 year ❑ Less than$500K
❑ 1-3 years ❑ $SOOK-$1 million
❑ 4-7 years ❑ $1-2 million
❑ 8-10 years ❑ $2-5 million
❑ More than 10 years ❑ Greater than$5 million
Page 30 of49
36
ATTACHMENT
The California Unified Certification Program
DBE Directory
may be found online at:
htto://www.dot.ca.gov/ha/beo/find certified.htm
Page 31 o£49
37
ATTACHMENT
PALM SPRINGS INTERNATIONAL AIRPORT
PROPOSED DBE OVERALL GOALS
FY 2015— FY 2017
Airport Sponsor. Palm Springs International Airport
Goal Period: From: October 1, 2014
Thru: September 30, 2017
Overall DBE Goal for FAA-Assisted Projects: 6.3%
Race-Neutral Goal: 6.3%
Race-Conscious Goal: 0.0%
Page 32 of 49
38
DBE GOAL METHODOLOGY
Overall goals for the Palm Springs International Airport Disadvantaged Business
Enterprise Program for federally assisted projects is established at three-year intervals
for a period of three years. The goal period for the three-year interval covered in this
report will begin on October 1, 2014 and end on September 30, 2017. The overall DBE
goal for the three-year period has been set at 6.9% of the Federal financial assistance
to be expended in DOT-assisted contracts during the time period covered. Federal
funding for projects is anticipated to be approximately $22.8 million during the period.
The relevant geographic market for contractors for Palm Springs International Airport
projects has been defined as Los Angeles, Orange, Riverside, San Bernardino and San
Diego counties because more than 80% of the companies performing projects at the
Airport over the last eight years are based in one of these areas.
49 CFR Part 26, Section 26.45(b) states as follows:
Your overall goal must be based on demonstrable evidence of the availability of ready,
willing and able DBEs relative to all businesses ready, willing and able to participate on
your DOT-assisted contracts (hereafter, the "relative availability of DBEs'). The goal
must reflect your determination of the level of DBE participation you would expect
absent the effects of discrimination. You cannot simply rely on either the 10 percent
national goal, your previous overall goal or past DBE participation rates in your program
without reference to the relative availability of DBEs in your market.
49 CFR Part 26, Section 26.45 further provides for a two-step process, consisting of:
Step 1 - Determine a Base Figure representing the Relative
Availability of DBEs
and
Step 2 - Examine data to determine what adjustment, if any, is
needed to the Base Figure
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The regulation provides the following examples of potential approaches for
accomplishing Step 1, determining the base figure, as follows:
1) Use DBE Directories and Census Bureau Data. Determine the number of
ready, willing and able DBEs in your market from your DBE directory.
Using the Census Bureau's County Business Pattern (CBP) database,
determine the number of all ready, willing and able businesses available in
your market that perform work in the same NAICS codes.
2) Use a bidders list. Determine the number of DBEs that have bid or quoted
on your DOT-assisted prime contracts or subcontracts in the previous
year. Determine the number of all businesses that have bid or quoted on
prime or subcontracts in the same time period. Divide the number of DBE
bidders and quoters by the number for all businesses to derive a base
figure for the relative availability of DBEs in your market.
3) Use data from a disparity study. Use a percentage figure derived from
data in a valid, applicable disparity study.
4 Use the goal of another DOT recipient. If another DOT recipient in the
) 9 P P
same, or substantially similar, market has set an overall goal in
compliance with this rule, you may use that goal as a base figure for your
goal.
5) Alternative methods. Subject to the approval of the DOT operating
administration, you may use other methods to determine a base figure for
your overall goal. Any methodology you choose must be based on
demonstrable evidence of local market conditions and be designed to
ultimately attain a goal that is rationally related to the relative availability of
DBEs in your market.
We have examined each of the alternatives. We have elected to use the combined
approach of DBE directories/Census Bureau data and data from a disparity study. The
methodology for establishing the FY 2015— FY 2017 DBE Goal is described on the
following pages.
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Step 1 - Determine a Base Figure representing the Relative Availability of DBEs
Projects planned for award during FY 2015 - 2017 are as follows:
FY 2015
• Runway Rehabilitation
• Access Control Equipment
• Flight Information Display (FIDS) and Paging System
FY 2016
• Building Projects
FY 2017
• Expand Terminal Building/Baggage Claim
The trade classifications expected to be utilized for these projects are as follows:
Table 1: Trade Breakdown for 2015 -2017 AIP Projects
Project Trade NAICS Trade$
Highway, Street and Bridge 237310 $5,787,000
Construction
Demolition, Excavation 238910 $720,000
RW Rehabilitation Electrical 238210 $1,530,000
Trucking 484220 $1,080,000
Fencing 238990 $225,000
Total Project $9,342,000
Securing Access Control Electrical 238210 $1,980,000
Equipment Equipment 423610 $1,350,000
Total Project $3,330,000
FIDS and Paging System Electrical 238210 $1,170,000
Equipment specialty $1,050,000
Total Project $2,220,000
Total Projects-2015 $14,892,000
Design, Construction 541310 $1,170,000
Management
Electrical 238210 $135,000
Carpenter 238350 $810,000
Building Projects Painting 238320 $90,000
Carpet 238330 $135,000
Drywall 238310 j $72,000
Materials 423990 $828,000
Equipment 238290 $360,000
Total Project $3,600,000
Page 35 of 49
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Table 1: Trade Breakdown for 2015-2017 AIP Projects
Project Trade NAICS Trade$
Total Projects-2016 $3,600,000
Design, Construction 541310 $810,000
Management
Electrical 238910 $135,000
Carpenter 238210 $630,000
Building Projects Painting 238320 $90,000
Carpet 238330 $225,000
Drywall 238310 $162,000
Materials 423990 $468,000
Equipment 238290 $1,080,000
Total Project $3,600,000
ARFF Vehicle Vehicle Purchase 336120 $720,000
Total Project $720,000
Total Projects-2017 $4,320,000
Total Projects 2015-2017 $22,812,000
In August 2012, the California Department of Transportation (Caltrans)Availability and
Disparity Study was published. The study developed a base goal of 12.5% for Caltrans
projects. The study considers only trades typically utilized in Caltrans projects.
Caltrans projects were broken down between construction and engineering.
Construction projects account for 97% of the projects undertaken by Caltrans. Trades
included in the construction category are: highway and street construction, electrical
work, asphalt and concrete supply, rebar and reinforcing steel, fencing, guardrails and
signs, land site prep, landscape services, wrecking and demolition, painting and
striping, water, sewer and utility lines, excavation and drilling, trucking, flagging
services, heavy construction equipment rental, construction sand and gravel, other
construction and other construction supplies.
Given the above, we believe that only the runway Rehabilitation project is comparable
to Caltrans projects. Therefore, we have utilized the Caltrans base goal of 12.5% for
the Runway Rehabilitation project and an alternative methodology for the remaining
projects.
DBE availability for trades used in the projects to be undertaken during the three-year
goal period, excluding the Runway Rehabilitation project, have been determined by
utilizing the California Unified Certification Program DBE Directory and Census Bureau
Data. Census and Directory information was extracted for the relevant trades listed
above. The geographic areas represented include Los Angeles, Orange, Riverside, San
Page 36 of 49
42
Bernardino and San Diego counties. In addition, DBE availability from the Caltrans
Disparity Study has been included for those trades that are included in the study. The
availability calculations are as follows:
Table 2: DBE Availability Percentages
TRADE NAICS Description NAILS Census Directory DBE %
Electrical Electrical Contractors 238210 3911 108 2.8%
Equipment Other Building Equipment 238290 336 10 3.0%
Contractors
Drywall Drywall and Insulation 238310 936 14 1.5%
Contractors
Painting Painting and Wall Covering 238320 1568 25 1.6%
Contractors
Carpet Flooring Contractors 238330 788 12 1.5%
Carpenter Carpenters (except framing) 238350 1070 20 1.9%
Demolition, Site Preparation Contractors 238910 1091 87 8.0%
Excavation
Fencing All Other Specialty Trade 238990 1487 102 6.9%
Contractors
Baggage Conveying Conveyor and Conveying 333922 26 0 0.0%
Equipment Equipment Manufacturin
Electrical Apparatus and
Equipment Equipment, Wiring Supplies, and 423610 1246 35 2.8%
Related Equipment Merchant
Wholesalers
Materials Other Miscellaneous Durable 423990 1191 13 1.1%
Goods Merchant Wholesalers
Trucking Trucking 484220 898 187 20.8%
Design, Construction Design, Construction 541310 1640 68 4.1%
Management Management
* The%was obtained by dividing the DBE directory#of firms by the census#of firms.
The availability calculations from the above chart have been weighted by the anticipated
expenditures for each trade classification for all projects excluding the Runway
Rehabilitation project. For the Runway Rehabilitation project, the Caltrans base goal
has been used.
Table3: Weighted DBE Availability
Project Trade NAICS Trade$ DBE% DBE $
Highway, Street and Bridge Const 237310 $5,787,000 '12.5% $723,375
Demolition, Excavation 238910 $720,000 '12.5% $90,000
RW Rehabilitation Electrical 238210 $1,530,000 '12.5% $191,250
Trucking 484220 $1,080,000 '12.5% $135,000
Fencing 238990 $225,000 '12.5% $28,125
Page 37 of 49
43
Table3: Weighted DBE Availability
Project Trade NAICS Trade$ DBE % DBE $
Total Project $9,342,000 *12.5% $1,167,750
Access Control Electrical 238210 $1,980,000 2.8% $55,440
Equipment Equipment 423610 $1,350,000 2.8% $37,800
Total Project $3,330,000 2.8% $93,240
FIDS and Paging Electrical 238210 $1,170,000 2.8% $32,760
System Equipment *specialty $1,050,000 0.0% $0
Total Project $2,220,000 1.5% $32,760
Total Projects-2015 $14,892,000 8.7% $1,293,750
Design, Construction Management 541310 $1,170,000 4.1% $47,970
Electrical 238210 $135,000 2.8% $3,780
Carpenter 238350 $810,000 1.9% $15,390
Painting 238320 $90,000 1.6% $1,440
Building Projects Carpet 238330 $135,000 1.5% $2,025
Drywall 238310 $72,000 1.5% $1,080
Materials 423990 $828,000 1.1% $9,108
Equipment 238290 1 $360,000 3.0% $10,800
Total Project $3,600,000 2.5% $91,593
Total Projects-2016 $3,600,000 2.5% $91,593
Design, Construction Management 541310 $810,000 4.1% $33,210
Electrical 238910 $135,000 2.8% $3,780
Carpenter 238210 $630,000 1.9% $11,970
Terminal Baggage Painting 238320 $90,000 1.6% $1,440
Improvements Carpet 238330 $225,000 1.5% $3,375
Drywall 238310 $162,000 1.5% $2,430
Materials 423990 $468,000 1.1% $5,148
Equipment 333922 $1,080,000 0.0% $0
Total Project $3,600,000 1.7% $61,353
ARFF Vehicle Vehicle Purchase *specialty $720,000 0.0% $0
Total Project $720,000 0.0% $0
Total Projects-2017 $4,320,000 1.4% $61,353
Total Projects 2015-2017 $22,812,000 6.3% $1,446,696
*Based on Caltrans Base goal
Note: The dollars to be spent for each trade(Table 1)have been multiplied by the DBE calculated Caltrans
availability if available,the Directory/Census availability if Caltrans is not available(Table 2). The total is the dollar
amount of DBE participation expected to be awarded to DBE firms given the availability of DBE firms and dollar
amount to be expended on each trade.
The result of the above calculations yields a base coal of 6.3%.
Page 38 of 49
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Step 2 - Examine data to determine what adjustment, if any, is needed to the Base
Figure.
Section 26.45(d) provides many examples of the types of data to examine in order to
adjust the base figure. The Caltrans Availability and Disparity Study determined that
there are various reasons for both upward and downward adjustments that tend to
cancel each other out. Therefore, we have elected not to make a Step II Adjustment
based on the Caltrans Study.
In addition to considering the information provided in the Caltrans Study, we have
examined past history of DBE participation at Palm Springs International Airport.
Because DBE goals have been race neutral for the past 5 years, DBE goals have not
been met. We do not believe that this is indicative of availability, therefore we have
elected not to adjust the goal for past history.
Given the above, we propose a DBE goal of 6.3% for the three-year period
beginning October 1. 2014 and ending September 30, 2017.
Race-Neutral Vs Race-Conscious Goal
In light of the Ninth Circuit Court of Appeals decision regarding Western States Paving
v. Washington State Department of Transportation and the fact that the Caltrans
Availability and Disparity Study does not include specific contracting practices for Palm
Springs International Airport, the DBE goal for Palm Springs International Airport will be
set as race neutral. We do not have sufficient evidence of discrimination or its effects to
support a race-conscious goal at this time. It should be noted that the City has
developed a Small Business Enterprise program that provides a means to set goals for
small business utilization in federally-funded projects. The program will be implemented
during this goal period and it is projected that the program will assist the airport in
meeting its DBE goals.
The following methods will be employed to implement race-neutral goals:
1) Provide information on the Palm Springs International Airport organization,
functions and its full range of contractual needs.
2) Offer instructions and clarification on bid specifications, procurement
policy, procedures, and general bidding requirements.
3) Maintain a file of successful bid documents from past procurement and
permit potential participants to review and evaluate such documents.
4) Conduct debriefing sessions on each awarded contract to explain why
certain bids were unsuccessful.
Page 39 of 49
45
5) Routinely issue projected procurement information.
6) Provide instructions and clarification on job performance requirements.
7) Provide information and assistance on certification procedures, sub-
contracting practices, bonding requirements.
8) Provide assistance in obtaining bonding and financing and provide
technical assistance.
9) Arrange solicitations, time for presentation of bids, quantities,
specifications and delivery schedules to facilitate the participation of
DBE's.
10) Implement small business goals where practicable.
The recruiting area for the projects will consist of San Bernardino, San Diego, Riverside,
Orange, and Los Angeles counties.
A published notice announcing our proposed overall goal, informing the public that the
proposed goal and its rationale are available for inspection during normal business
hours at the our principal office for 30 days following the date of the notice, and
informing the public that we will accept comments on the goals for 45 days from the
date of the notice will be published in The Desert Sun and on the airport's website.
Notices will also be sent to the following organizations:
• Association of General Contractors — Los Angeles District
• Black Chamber of Commerce of Orange County
• Coachella Valley Mexican American Chamber of Commerce
• National Association of Minority Contractors — So. Cal Chapter
• National Association of Women Contractors — Orange Co. Chapter
• Palm Springs Chamber of Commerce
Page 40 of 49
46
Attachment 7
DBE Enforcement Mechanisms
The City has available several remedies to enforce the DBE requirements contained in
its contracts, including, but not limited to, breach of contract action, pursuant to the
terms of the contract.
The Contractor shall, under the Contract, carry out applicable
requirements of 49 CFR Part 26 in the award and administration of such
DOT- assisted contracts. Failure by the Contractor to carry out these
requirements is a material breach of this Contract, which may result in the
termination of this Contract or such other remedy as The City deems
appropriate, which may include, but is not limited to:
1.) Withholding monthly progress payments;
2.) Assessing sanctions;
3.) Liquidated damages;
4.) Disqualifying Contractor from future bidding as non-
responsible;
5.) Specific performance;
6.) Contract suspension;
7.) Withholding a portion of final payment in the amount of
the DBE goal shortfall; and/or
8.) Such other remedies as may be available to The City by
law.
In addition, the Federal government has available several enforcement mechanisms
that it may apply to firms participating in the DBE problem, including, but not limited to,
the following:
1. Suspension or debarment proceedings pursuant to 49 CFR Part 26
2. Enforcement action pursuant to 49 CFR Part 31
3. Prosecution pursuant to 18 USC 1001.
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ATTACHMENT 8
DBE Certification Application Form
The CUCP DBE Certification Application Form may be found online at:
http://www.caltrans.ca.gov/hq/bep/business—forms.htm
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ATTACHMENT
Small Business Element
City of Palm Springs
Palm Springs
International Airport
Small Business Program
Developed as an Element
of the DBE Program
Page 43 of 49
49
TABLE OF CONTENTS
I. SMALL BUSINESS PROGRAM POLICY.....................................................................................45
II. AUTHORIZATION..........................................................................................................................45
Ill. SMALL BUSINESS ENTERPRISE DEFINITION......................................................................46
IV. SMALL BUSINESS ENTERPRISE VERIFICATION..................................................................47
V. SCOPE OF THE PROGRAM ..........................................................................................................47
VI. TRACKING SBE PARTICIPATION...................................................................................48
VII. TECHNICAL ASSISTANCE/BUSINESS DEVELOPMENT RESOURCES.............................49
VIII.ASSURANCES................................................................................................................................49
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I. SMALL BUSINESS PROGRAM POLICY
This Small Business Program was developed by the City of Palm Springs ("the City') as
an element of the Palm Springs International Airport DBE Program to provide additional
opportunities for small businesses to participate in contracting at Palm Springs
International Airport.
The City's Small Business Program, as described herein, applies to certain federally
funded contracts and expenditures. The Program utilizes small business enterprise
goals, where appropriate, in an effort to facilitate competition by small business
concerns, including Disadvantaged Business Enterprises.
The Small Business Program will operate in a race and gender-neutral manner. The
Program will not be used to discriminate against any company or groups of companies.
It has been designed to include all segments of the business community and is open to
participation without regard to race, color, sex, religion, national or ethnic origin, age or
disability. The City's Small Business Program is open to small businesses regardless of
their location. There will be no geographic preference or limitation imposed on small
businesses participating in federally funded contracts.
The Program will utilize procedures that promote inclusion and opportunity, while
maintaining race and gender-neutral measures in their operations.
The City is committed to ensuring that small businesses are offered an equitable
opportunity to participate in the contracting and procurement process.
It. AUTHORIZATION
In accordance with the regulations governing the U.S. Department of Transportation
(DOT) Disadvantaged Business Enterprise (DBE) Program, the City sets triennial
overall DBE goals for contracts that are funded in whole or in part with federal funds.
The City is obligated to meet the maximum feasible portion of its overall goal through
race and gender neutral means of facilitating DBE participation. (49 CFR § 26,51).
49 CFR part 26 includes a section (26.39) entitled "Fostering Small Business
Participation" which states as follows:
§26.39 Fostering small business participation.
(a) Your DBE program must include an element to structure contracting requirements to
facilitate competition by small business concerns, taking all reasonable steps to eliminate
obstacles to their participation, including unnecessary and unjustified bundling of
contract requirements that may preclude small business participation in procurements as
prime contractors or subcontractors.
45 o- 49
51
(b) This element must be submitted to the appropriate DOT operating administration for
approval as a part of your DBE program. As part of this program element you may
include, but are not limited to, the following strategies:
(1) Establishing a race-neutral small business set-aside for prime contracts under a
stated amount (e.g., $1 million).
(2) In multi-year design-build contracts or other large contracts (e.g.,for
"megoprojects") requiring bidders on the prime contract to specify elements of the
contract or specific subcontracts that are of a size that small businesses, including DBEs,
can reasonably perform.
(3) On prime contracts not having DBE contract goals, requiring the prime contractor to
provide subcontracting opportunities of a size that small businesses, including DBEs, can
reasonably perform, rather than self-performing all the work involved.
(4) Identifying alternative acquisition strategies and structuring procurements to
facilitate the ability of consortia or joint ventures consisting of small businesses,
including DBEs, to compete for and perform prime contracts.
(5) To meet the portion of your overall goal you project to meet through race-neutral
measures, ensuring that a reasonable number of prime contracts are of a size that small
businesses, including DBEs, can reasonably perform.
(c) You must actively implement your program elements to foster small business
participation. Doing so it a requirement of goad faith implementation ofyour DBE
program.
This Program has been developed as an element of the Pam Springs International
Airport DBE program in compliance with the above stated sections of 49 CFR part 26
and further guidance issued by DOT.
III. NON-DISCRIMINATION
It is the policy of PSP, that the Airport, its contractors, subcontractors and
concessionaires, shall not discriminate on the basis of race, color, religion, national
origin, or sex in the award and performance of contracts and subcontracts and to
remove barriers for small businesses, including minority, women-owned, and
disadvantaged business enterprises, to compete for contracts and subcontracts
awarded by the Airport.
It is also the policy of PSP to support the growth and development of small businesses,
including Disadvantaged Business Enterprises, that can successfully compete, outside
of the Program, for Airport prime contracting opportunities.
This Small Business Program has been developed in furtherance of these policies.
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IV. SMALL BUSINESS ENTERPRISE DEFINITION
For purposes of this Small Business Program, a Small Business Enterprise (SBE) shall
be defined as follows:
A small business enterprise, with respect to firms seeking to participate as SBEs in the
City's Small Business Program, is a small business concern as defined pursuant to
section 3 of the Small Business Act and Small Business Administration regulations
implementing it (13 CFR part 121) that also does not exceed the cap on average annual
gross receipts specified in 49 CFR part 26, §26.65(b).
49 CFR part 26, §26.65(b) states as follows:
(b) Even if it meets the requirements of paragraph (a) of this section, a firm is not an
eligible DBE in any Federal,liscal year if the firm (including its affiliates) has had
average annual gross receipts, as defined by SBA regulations (see 13 CFR 121.402), over
the firm's previous three fiscal years, in excess of$22.41 million.
The SBA size standards may be found at:
www.sbaonline.sba.gov/contractingopportunities/officials/size/table/index.html
IV. SMALL BUSINESS ENTERPRISE VERIFICATION
A firm who wishes to participate as an SBE on a project at Palm Springs International
Airport and has not been certified as a DBE or verified as an SBE by one of the
certifying agencies of the California Unified Certification Program within the preceding
12 months may apply for verification as an SBE by filing a SMALL BUSINESS
ENTERPRISE (SBE) VERIFICATION FORM and submitting the form along with all
required attachments at the time of bid.
Firms applying for verification as an SBE must provide all required information and
documentation necessary to verify that they meet the definition of a Small Business
Enterprise.
V. SCOPE OF THE PROGRAM
The intent of Palm Springs International Airport's Small Business Program is to provide
full and fair opportunities for equal participation by small businesses in federally-funded
Airport contracting and procurement opportunities.
The Small Business Program requires contractors to make good faith efforts to use
small businesses in certain contracting and procurement opportunities. Good faith
efforts will be measured utilizing guidance provided in 49 CFR part 26, Appendix A.
All construction, professional services, goods and general services solicitations that
include federal funding shall be reviewed by the DBE Liaison Officer to determine if a
47 of 49
53
Small Business Enterprise (SBE) goal is appropriate for the solicitation. SBE contract
goals may be set for a contract when it has been determined that a race conscious
contract goal will not be set and that, instead, race neutral measures will be used. An
SBE goal may be used as a race neutral measure for contracts that have
subcontracting opportunities. SBE goals do not replace DBE goals, but merely provide
an alternative race neutral method for achieving race neutral DBE participation.
A decision to use race-neutral goals will be made in accordance with 49 CFR part
26.51, including a determination that race neutral methods are sufficient to meet the
Airport's overall DBE goal. PSP may determine that an SBE goal is an appropriate race
neutral measure to be used for certain contracts. The criteria used to set a race neutral
SBE goal shall include small business capacity, small business availability, nature of the
contract, past experiences with small business participation with similar contracts, price
competitiveness, and subcontracting opportunities. Procedures for implementation,
including good faith efforts requirements and information submitted with bid and
reporting procedures shall be consistent with procedures utilized in the Airport's DBE
Program under a race neutral environment. Good faith efforts to achieve a race neutral
goal shall apply only when an SBE goal has been set for a project. Other race neutral
methods, including those listed in 49 CFR part 26, §26.51, are not subject to good faith
efforts on the part of the bidder.
The program also requires airport staff to consider unbundling of contracts when
feasible. The Airport seeks to avoid unnecessary and unjustified bundling of contract
requirements that preclude small business participation in procurements as prime
contractors. To achieve this, multi-trade projects estimated to exceed $5 million will be
reviewed for potential unbundling to provide for a reasonable number of small
opportunities to facilitate participation by small businesses. The DBE Liaison Officer, in
coordination with the Executive Airport Director, will provide a recommendation for
unbundling based on a determination that there are a sufficient number of qualified SBE
firms available to compete to perform the contract(s) which would result from
unbundling. The Executive Airport Director will have the opportunity to review the
recommendation for unbundling and either accept the recommendation or provide
rationale for rejecting the recommendation.
VI. TRACKING SBE PARTICIPATION
The City will monitor and track participation by small businesses in federally-funded
projects. Only small businesses that are also certified as DBEs will be counted towards
PSP's overall DBE goal. Participation by SBEs who are not certified as DBEs will be
tracked for informational purposes, but not reported to the FAA. Race- and gender-
neutral DBE participation obtained through the SBE Program will be included in the
Airport's Annual Reports of Accomplishments and will be calculated by dividing the total
dollars to DBEs achieved through the small business program by the total federal
dollars.
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VII. TECHNICAL ASSISTANCE/BUSINESS DEVELOPMENT RESOURCES
Small businesses may obtain technical assistance through the following resources:
1. Governor's Office of Business and Economic Opportunity (GO-Biz):
www.business.ca.gov
2. SBA Office of Small business Development Centers:
www.sba.gov/offices/headguarters/osbdc/resources/1 1409
3. California Small Business Development Center— Inland Empire
4. SCORE — Coachella Valley
VIII. ASSURANCES
The City provides the following assurances regarding the development and
implementation of the SBE Program described herein:
1) The development of this Small Business Program is not prohibited by California
state law.
2) Certified DBEs that meet the size criteria established under the program are
presumptively eligible to participate in The City's Small Business Program.
3) There will be no geographic preferences or limitations imposed on any federally
assisted procurement included in the City's Small Business Program.
4) There will be no limits on the number of contracts awarded to firms participating
in the program.
5) The City will make every effort to avoid creating barriers to the use of new or
emerging businesses.
6) The Airport's Small Business Program is open to small businesses regardless of
their location. There will be no local or other geographic preference.
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