[Adopted 6-18-1984; amended in its entirety 4-1-2002 by Ord. No. 13-22-02]
It is hereby ordained and directed that the
City of Albany by this article adopts and establishes a Minority-
and women-owned Business Enterprise Program and Minority and Women
Labor Utilization Plan. The policy, standards and procedures to be
followed by the City of Albany and sanctions imposed under this article
are set forth below.
It is the policy of the City of Albany that
minority- and women-owned business enterprises shall have the maximum
opportunity to participate in the performance of contracts let by
the City and its several agencies and authorities. It is further the
policy of the City of Albany and its several agencies and authorities
that all contractors and subcontractors engaged on projects of the
City or its several agencies or authorities shall utilize minority
and women labor to the fullest extent possible. In the implementation
of this policy, the City commits itself to a goal-oriented Minority-
and women-owned Business Enterprise Program and a Minority and Women
Labor Utilization Plan as set forth below.
For the purpose of this program, the following
definitions shall govern the management and direct implementation
of program guidelines for minority- and women-owned business enterprises
(MWOBE) and the Minority and Women Labor Utilization Plan (MWLUP):
An established, profit-making enterprise, firm or corporation
owned, controlled and operated with a minimum of 51% of all vested
ownership and management benefits held by citizens and/or permanent
residents who are women or a member of one of the following groups:
citizens and/or permanent residents identified as minority and defined
as such by the United States Department of Commerce, United States
Department of Labor:
Black persons not of Hispanic origin: persons
having origins in any of the black racial groups of Africa.
Hispanic persons: persons of Mexican, Puerto
Rican, Cuban, Central or South American or other Spanish culture of
origin, regardless of race.
Asians or Pacific islanders: persons having
origins in any of the original peoples of the Far East, Southeast
Asia, the Indian Subcontinent or the Pacific islands. This area includes,
for example, China, Japan, Korea, the Philippine islands and Samoa.
American Indians or Alaskan natives: persons
having origins in any of the original peoples of North America, and
who maintain cultural identification through tribal affiliation or
community recognition.
A.
The minority or women ownership of such business is
a profit-making venture engaging in and capable of continuous engagement
in construction/construction-related activity and is organized as
one of the following:
B.
The minority or women owner(s) must possess the authority
to direct daily business operations and enforce policies of the firm.
Specifically, the minority or women owner(s) must exercise routine,
ongoing management responsibilities, including but not limited to:
A.
The following standards shall be used by the City
of Albany to establish criteria and to monitor the operation of a
Minority- and Women-Owned Business Enterprise Program. The program
requires the City to:
(1)
Identify minority- and women-owned and -controlled
business firms, corporations and establishments capable of engaging
successfully in a competitive bid process for the procurement of construction
and construction-related projects.
(2)
Maintain a central directory of minority-and women-owned
and -controlled firms for bid notification, referrals and for negotiating
contracts and subcontracts with construction residential rehab projects.
(3)
Discontinue and disqualify contractors and subcontractors
when violations of policy and performance agreements occur.
B.
Work performance standards. The MWOBE contractor/subcontractor:
(1)
Is responsible for entering into all contractual agreements
which generate contracts.
(2)
Arranges for and supervises contract performance.
(3)
Secures equipment, materials and crew (laborers) sufficient
to complete projects.
(4)
Provides bonding insurance and collateral as required
for surety in contract performance.
(5)
Authorizes payrolls, payments and reports as requested
in routine compliance.
C.
Prohibitions.
(1)
Personnel transfers. An approved MWOBE subcontractor
shall not include any enterprise whose principal officer, superintendent,
foreman or any other similar supervisory-type personnel was in the
employ of the low bidder (prime) during the period of time six months
prior to the date of the bid announcement and extending to the date
of the bid opening.
(2)
Demonstration of independence. Minority and women
ownership and control shall be real and continuing and shall not be
created solely to take advantage of special programs provided for
minority and women business development. Certification shall be denied
businesses not controlled by minority and women business persons.
D.
Suspect indicators. A nonminority or nonwomen firm
may be considered as controlling or having the power to control a
minority and women firm when one or more of the following circumstances
are found to exist and it is reasonable to conclude that under the
circumstances such nonminority or nonwomen firm is directing or influencing
or has the power to direct or influence the operation of the minority
or women firm:
(1)
Interlocking management. Officers, directors, employees
or principal stockholders of the nonminority or nonwomen firm serve
as officers of the minority or women firm.
(2)
Common facilities. The nonminority or nonwomen firm
shares common office space and/or employees and/or other facilities
with the minority or women firm.
E.
Reports.
(1)
The Albany MWOBE Officer shall annually submit a written
report to the Common Council on or before April 1 of each year summarizing
the previous year’s compliance with:
[Amended 1-24-2019 by Ord. No. 1.11.19]
(2)
Such report may also include recommendations designed
to improve the administration and implementation of the program set
forth in this article.
The contractor must develop and submit to the
Albany MWOBE Officer, at initial bidding, a detailed schedule of MWOBE
participation, including:
The contractors shall carry out this policy
in the awarding of contracts and subcontracts to minority and women
business enterprises to the fullest extent consistent with the efficient
performance of this contract and shall consider using positive efforts
to meet the applicable MWOBE participation goal. Such positive efforts
shall include but not be limited to:
A.
Attendance at preconstruction meetings scheduled by
the City and its several agencies and authorities.
B.
Advertising, subcontracting opportunities for MWOBE's
in minority and women trade association newsletters and minority and
women media. The bid due date and reasonable MWOBE response due date
must be specified in the advertisement. At a minimum, the publication
chosen must be distributed within reasonable proximity of the location
of the construction project. The advertisement must be for specific
subcontracts which are described in reasonable detail.
C.
Notifying minority and women contractor associations
located within the City of Albany of the available subcontracting
opportunities. The notification must be by certified mail and should
be received by the addressee associations in time to permit effective
MWOBE participation. The MWOBE response due date must be specified
in the notifications. The solicitation must be for specific subcontracts,
and the work to be done must be described as accurately as possible
and in reasonable detail.
D.
Where technically feasible, segmenting the work to
be subcontracted to accommodate the size and capabilities of available
minority and women subcontracting.
E.
Sending solicitation letters by certified mail inviting
quotes or proposals from individual minority and women business enterprises.
The solicitation letter must reference specifically segmented portions
of work to be contracted. The portions of work must be described as
specifically and accurately as possible. Inquiries for further details
must be encouraged. The solicitation letter must be sent in a timely
manner so as to allow minority and women firms sufficient opportunity
to develop quotes or proposals for the work described. All solicitation
letters shall include the bid date and a response due date for the
information of the addressee.
F.
Engaging in direct negotiations with an MWOBE whose
proposal is deemed unreasonably high and rejected for that reason.
G.
Informing its MWOBE subcontractors of change orders
that may affect the MWOBE's subcontract.
Throughout the project, the contractor must:
A.
Require each subcontractor under the contract to comply
with the MWOBE requirement, if necessary to achieve the MWOBE goal.
B.
Inform the Albany MWOBE Officer of any changes in
its detailed schedule of MWOBE participation.
C.
Maintain documentation that will demonstrate good
faith efforts to retain MWOBE 's.
D.
Make good faith efforts to replace an MWOBE subcontractor
that is unable to perform successfully with another MWOBE.
E.
Notify the Albany MWOBE Officer of any suspected instances
of companies fraudulently claiming MWOBE status.
F.
If possible, provide any needed technical assistance
to MWOBE 's under contract.
G.
If possible, aid proposed MWOBE subcontractors in
obtaining necessary bonding.
H.
Design payment schedules to minimize cash-flow problems
faced by MWOBE 's.
I.
Strive to attain a minority and women labor utilization
plan of 30%.
[Amended 12-7-2020 by Ord. No. 24.101.20; 4-18-2022 by Ord. No. 3.21.22]
MWOBE eligibility status shall be renewed annually.
A.
Contract record. The MWOBE firm shall have performed
contracts in the trades area. Copies of such previous contracts shall
be presented to the City in the MWOBE applications materials or present
credentials of training or work history.
B.
Location of business. The MWOBE firm shall maintain
a business location designated by full street address and telephone
service specific to the business requesting certification and contract
negotiations.
C.
Recordkeeping.
(1)
The MWOBE firm shall present financial records, including
a certified copy of the two previous years' profit and loss statement
and balance sheet.
(2)
The MWOBE firm shall make available to the City of
Albany all financial bookkeeping records for review and verification
by the City, upon request. The City reserves the right to audit the
operations of the MWOBE firm for compliance verification and certification
purposes.
A.
All contractors are requested to maintain accurate
and complete records to reflect the name of the MWOBE, individual
contacted, description of the work to be done, quotation or proposal
received (if any) and description of follow-up actions. In the event
an interested MWOBE will not be utilized, the record of contact with
that firm should include an explanation of the reason(s) why the firm
will not be used. All contractors and subcontractors are requested
to maintain accurate and complete records to reflect efforts to obtain
maximum minority and women labor utilization.
B.
Contractors will be required to maintain for three
years such records as are necessary to determine compliance with their
MWOBE obligations and to submit regular reports to enable the Albany
MWOBE Officer to monitor this compliance.
If the contractor cannot meet the goal, the
contractor must document to the Albany MWOBE Officer that all positive
efforts have been made to achieve it. Failure to meet the goal or
to document all positive efforts that have been made to achieve it
may result in the City invoking sanctions against the contractor,
including but not limited to:
A.
If any part of this article or its application to
any persons or circumstances is adjudged by a court to be invalid
or ineffectual, such judgment shall not affect the remainder of the
article or its application to any other person or circumstance.
B.
This article shall supersede all laws inconsistent
with it to the extent of such inconsistency, but in all other respects
shall be deemed supplemental to such laws.
