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August 19,2015 Appendix A Appendix A to Part 26-Guidance Concerning Good Faith Efforts I. When, as a recipient , you establish a contract goal on a DOT-assisted contract for procuring construction, equipment, services , or any other purpose, a bidder must, in order to be responsible and/or responsive , make sufficient good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for partiCipation by DBE firms sufficient for this purpose . Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts . This means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful. II. In any situation in which you have established a contract goal, Part 26 requires you to use the good faith efforts mechanism of this part. As a recipient, you have the responsibility to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important for you to consider the quality , quantity , and intensity of the different kinds of efforts that the bidder has made, based on the regulations and the guidance in this Appendix . The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. We emphasize, however, that your determination concerning the sufficiency of the firm's good faith efforts is a judgment call. Determinations should not be made using quantitative formulas . III . The Department also strongly cautions you against requiring that a bidder meet a contract goal (i.e ., obtain a specified amount of DBE participation) in order to be awarded a contract , even though the bidder makes an adequate good faith efforts showing . This rule specifically prohibits you from ignoring bona fide good faith efforts . IV. The following is a list of types of actions which you should consider as part of the bidder's good faith efforts to obtain DBE partiCipation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. A. (1) Conducing market research to identify small business contractors and suppliers and soliciting through all reasonable and available means the interest of all certified DBEs that have the capability to perform the work of the contract. This may include attendance at pre-bid and business matchmaking meetings and events, advertiSing and/or written notices, posting of Notices of Sources Sought and/or Requests for Proposals , written notices or emailstoall DBEs listed in the State's directory of transportation firms that specialize in the areas of work desired (as noted in the DBE directory) and which are located in the area or surrounding areas of the project. (2) The bidder should solicit this interest as early in the acquisition process as practicable to allow the DBEs to respond to the solicitation and submit a timely offer for the subcontract. The bidder should determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations. B . Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units (for example, smaller tasks or quantities) to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. This may include, where possible, establishing flexible timeframes for performance and delivery schedules in a manner that encourages and facilitates DBE participation. Page 39 of43