HomeMy WebLinkAboutResolution Approving DBE Policy for Bowers FieldKITTITAS COUNTY
DEPARTMENT OF PUBLIC WORKS
STAFF REPORT
SESSION DATE: February 16, 2016
ACTION REQUESTED: Sign the Resolution Adopting Federal Aviation
Administration Disadvantaged Business Enterprise
Policy for Bowers Field Airport Improvements
BACKGROUND: Recently, the Kittitas County Board of County
Commissioners accepted a Federal Aviation
Administration grant supporting a revision to
the airport masterplan. The Federal Aviation
Administration (FAA) requires adoption of a
disadvantaged business enterprise (DBE)
policy as a condition of grant award.
Public Works manages a DBE policy consistent
with Federal Highway Administration
(FHWA) requirements for all federal aid work
on county roads. The FAA will not accept the
FHWA policy and insists on adoption of their
model policy.
During the past several months, staff has
worked with the Prosecuting Attorney's Office
and the Board finalizing the FAA Policy for
Board consideration.
INTERACTION: Public Works
RECOMMENDATION: Motion to approve and sign the Resolution
adopting the FAA model DBE policy
supporting Bowers Field improvements.
HANDLING: Return (2) originals to Public Works.
ATTACHMENTS: Resolution, FAA DBE Policy
LEAD STAFF: Mark R. Cook, Director of Public Works
BOARD OF COUNTY COMMISSIONERS
COUNTY OF KITTITAS
STATE OF WASHINGTON
RESOLUTION NO. 2016 -
WHEREAS: The Kittitas County Board of County Commissioners (Board) has previously
adopted a Federal Aviation Administration (FAA) grant revising the Bowers Field
Airport Master Plan; and
WHEREAS: The FAA requires adoption of its disadvantaged business enterprise (DBE)
model policy supporting future airport improvements as a condition of grant
acceptance; and
WHEREAS: Staff has prepared a DBE Policy consistent with FAA policy guidance and
worked with the Board and the Prosecuting Attorney's Office creating a final
policy for adoption;
NOW, THEREFORE BE IT RESOLVED that the Board of County Commissioners, in the best
interest of the public, does hereby adopt the Bower's Field Airport Disadvantaged Business
Enterprise Policy for use with all airport improvement projects; and
FURTHER BE IT RESOLVED that the Board of County Commissioners directs the DBE Liaison
Officer, Ms. Candie Leader, sign the Federal Aviation Administration DBE Policy on behalf of
the Board of County Commissioners.
DATED this _ day of , 2016, at Ellensburg, Washington.
Attest:
❑ Clerk of the Board- Julie Kjorsvik
❑ Deputy Clerk of the Board- Mandy Buchholz
BOARD OF COUNTY COMMISSIONERS
KITTITAS COUNTY, WASHINGTON
Obie O'Brien, Chairman
Paul Jewell, Vice -Chairman
Gary Berndt, Commissioner
August 19, 2015
DEPARTMENT OF TRANSPORTATION
DBE PROGRAM — 49 CFR PART 26
SAMPLE DBE PROGRAM
DOT published Part 26 in the Federal Register on February 2, 1999, and it became
effective March 4, 1999 (64 F.R. 5096). It made extensive revisions to DOT's DBE
program, formally administered under 49 CFR Part 23. The Final Rule to 49 CFR Part
26 was published in the Federal Register, Volume 68, No. 115 on June 16, 2003. Five
(5) subsequent Final Rules to 49 CFR Part 26 were published in the Federal Register
on April 2, 2007, April 3, 2009, February 3, 2010, January 28, 2011 and October 2,
2014, which made additional revisions to the regulation. The e -version of the
regulations has combined all of these documents into one for easy reading
httpJ/ecfr.q oaccess.gov/
We are providing this Sample DBE Program for informational purposes, and recipients
are not required to use it or its format. This Sample Program is NOT official U.S.
Department of Transportation (DOT) guidance. This Sample Program is a revised
version of the original version prepared by the DOT. It has been modified by FAA staff
and has not yet been reviewed by the General Counsel of the Department of
Transportation for consistency with the language and intent of 49 CFR Part 26.
However, recipients may wish to use it as a guide in preparing their program
documents. Recipients may customize the sample program to fit their circumstances.
At a number of points, the Sample DBE Program refers to provisions of Part 26.
Recipients may quote referenced portions of the rule in their program if they wish, but
they are not required to do so. The Sample DBE Program also provides language for
some documents that are part of the program (e.g., policy statements, contract
clauses). Except where otherwise noted, recipients are not required to use this
language, and may use their own language as long as it meets regulatory requirements.
In the sample program, we have inserted instructions and notes in italics.
Recipients should include italicized sections in their program documents.
You may obtain an electronic version of this document, from FAA Office of Civil Rights
website:
http://www.faa.gov/about/office orq/headquarters offices/acr/bus ent program/training
cont/.
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POLICY STATEMENT
Section 26.1, 26.23 Objectives/Policy Statement
The County of Kittitas, WA owner of Bowers Field has established a Disadvantaged
Business Enterprise (DBE) Program in accordance with regulations of the U.S.
Department of Transportation (DOT), 49 CFR Part 26. The County of Kittitas, WA has
received Federal financial assistance from the Department of Transportation, and as a
condition of receiving this assistance, the County of Kittitas, WA has signed an
assurance that it will comply with 49 CFR Part 26.
It is the policy of the County of Kittitas, WA to ensure that DBEs as defined in Part 26,
have an equal opportunity to receive and participate in DOT—assisted contracts. It is
also our 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
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 recipients of Federal financial assistance
in establishing and providing opportunities for DBEs.
Candie Leader, Administrative Assistant has been delegated as the DBE Liaison
Officer. In that capacity, Candie Leader is responsible for implementing all aspects of
the DBE program. Implementation of the DBE program is accorded the same priority as
compliance with all other legal obligations incurred by the County of Kittitas, WA in its
financial assistance agreements with the Department of Transportation.
County of Kittitas, WA has reviewed this policy. We have distributed this statement to
DBE and non -DBE business communities that perform work for us on DOT -assisted
contracts. The distribution was accomplished by posting a link to the plan on the County
of Kittitas, WA website.
Candie Leader, Administrative Assistant Date
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SUBPART A — GENERAL REQUIREMENTS
Section 26.1 Objectives
The objectives are found in the policy statement on the first page of this program.
Section 26.3 Applicability
The County of Kittitas, WA is the recipient of Federal airport funds authorized by 49
U.S. C. 47101, et seq.
Section 26.5 Definitions
The County of Kittitas, WA will use terms in this program that have the meaning defined
in Section 26.5.
1. We is the County of Kittitas, WA
2. Our is the County of Kittitas, WA
3. You is the County of Kittitas, WA
Section 26.7 Non-discrimination Requirements
The County of Kittitas, WA 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 its DBE program, the County of Kittitas, WA will not, directly or through
contractual or other arrangements, use criteria or methods of administration that have
the effect of 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) You must continue to provide data about your DBE Program to the Department as
directed by DOT operating administrations.
We will report DBE participation to DOT/FAA as follows:
We will transmit to FAA annually on December 1, the "Uniform Report of DBE
Awards or Commitments and Payments" form, found in Appendix B to this part. We
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will also report the DBE contractor firm information either on the FAA DBE
Contractor's Form or other similar format. We will begin using the revised Uniform
Report of DBE Awards or Commitments and Payments for reporting FY 2015 reports
due December 1, 2015.
Bidders List: 26.11(c)
The County of Kittitas, WA will create and maintain a bidders list. The purpose of the
list is to provide as accurate data as possible about the universe of DBE and non -DBE
contractors and subcontractors who seek to work on our DOT -assisted contracts for use
in helping to set our overall goals. The bidders list will include the name, address, DBE
and non -DBE status, age of firm, and annual gross receipts of firms.
We will collect this information in the following ways: Inclusion of a Bidders List in
project bidding documents. A copy of the proposed list is included in Attachment 3.
Section 26.13 Federal Financial Assistance Agreement
The County of Kittitas, WA has signed the following assurances, applicable to all DOT -
assisted contracts and their administration:
Assurance: 26.13(a) - Each financial assistance agreement the County of Kittitas, WA
signs with a DOT operating administration (or a primary recipient) will include the
following assurance:
The County of Kittitas, WA 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 County of Kittitas, WA 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 County of Kittitas, WA'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 County of Kittitas, WA 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: 26.13b — The County of Kittitas, WA will ensure that the following
clause is included in each contract we sign with a contractor and each subcontract the
prime contractor signs with a subcontractor:
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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 is a
material breach of this contract, which may result in the termination of
this contract or such other remedy as the County of Kittitas, WA 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 County of Kittitas, WA 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, cumulative total value of which exceeds $250,000 in FAA
funds in a federal fiscal year. We are not eligible to receive DOT financial assistance
unless DOT has approved our DBE program and we are in compliance with it and this
part. We will continue to carry out our program until all funds from DOT financial
assistance have been expended. We do not have to submit regular updates of our
program, as long as we remain in compliance. However, we will submit significant
changes in the program for approval.
Section 26.23 Policy Statement
The Policy Statement is elaborated on the first page of this DBE Program
Section 26.25 DBE Liaison Officer (DBELO)
We have designated the following individual as our DBE Liaison Officer:
Candie Leader
Administrative Assistant
411 N Ruby St
Ellensburg, WA 98926
509-962-7699
candie.leader@co.kittitas.wa.us
In that capacity, the DBELO is responsible for implementing all aspects of the DBE
program and ensuring that the County of Kittitas, WA complies with all provision of 49
CFR Part 26. The DBELO has direct, independent access to the Parks Board
concerning DBE program matters. An organization chart displaying the DBELO's
position in the organization is found in Attachment 2 to this program.
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The DBELO is responsible for developing, implementing and monitoring the DBE
program, in coordination with other appropriate officials. The DBELO has direct access
to the district's attorney and the Airport Engineer of record to assist in the
administration of the program. The duties and responsibilities 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 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 County of Kittitas, WA's progress toward attainment and identifies
ways to improve progress.
7. Participates in pre-bid meetings.
8. Advises the CEO\governing body on DBE matters and achievement.
9. .
9. Determine contractor compliance with good faith efforts.
10.10. Provides DBEs with information and assistance in preparing bids,
obtaining bonding and insurance.
11.11. Plans and participates in DBE training seminars.
12.12. Acts as liaison to the Uniform Certification Process.
13.13. Provides outreach to DBEs and community organizations to advise them
of opportunities.
14.14. Maintains the agency's updated directory on certified DBEs.
Section 26.27 DBE Financial Institutions
It is the policy of the County of Kittitas, WA to investigate the full extent of services
offered by financial institutions owned and controlled by socially and economically
disadvantaged individuals in the community, to make reasonable efforts to use these
institutions, and to encourage prime contractors on DOT -assisted contracts to make
use of these institutions.
An effort to identify DBE financial institutions is included in the goal calculation included
in Attachment 5. Similar efforts will be made whenever a new goal is set.
Section 26.29 Prompt Payment Mechanisms
The County of Kittitas, WA has established, as part of its DBE Program, a contract
clause to require prime contractors to pay subcontractors for satisfactory performance
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of their contracts no later than 30 days from receipt of each payment you make to the
prime contractor.
We will ensure prompt and full payment of retainage from the prime contractor to the
subcontractor within 30 days after the subcontractor's work is satisfactorily completed.
We will use the following method to comply with this requirement:
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 your payment
to the prime contractor.
County of Kittitas, WA 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 County of Kittitas, WA. When County of Kittitas, WA 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 County of Kittitas, WA will provide appropriate means to enforce the requirements
of this section. These means include:
Contract provisions included in bidding documents
The County of Kittitas, WA will include the following clause in each DOT -assisted prime
contract:
The prime 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
County of Kittitas, WA. The prime contractor agrees further to return
retainage payments to each subcontractor within 30 days after the
subcontractors work is satisfactorily completed. Any delay or
postponement of payment from the above referenced timeframe may
occur only for good cause following written approval of the County of
Kittitas, WA. This clause applies to both DBE and non -DBE
subcontractors.
Section 26.31 Directory
The County of Kittitas, WA uses the State of Washington DBE directory, maintained by
the State.
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
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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 state UCP revises the Directory daily. We make the Directory available by listing
the website where the interested persons may access the directory. The Directory may
be found at http://wsdot.wa.gov/Partners/OMWBE/DBEDirectory/
Section 26.33 Over -concentration
The County of Kittitas, WA has not identified that over -concentration exists in the types
of work that DBEs perform.
Section 26.35 Business Development Programs
The County of Kittitas, WA has not established a business development program.
Section 26.37 Monitoring and Enforcement Mechanisms
The County of Kittitas, WA will take the following monitoring and enforcement
mechanisms to ensure compliance with 49 CFR Part 26.
We will bring to the attention of the Department of Transportation 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. We will implement similar action under our own legal authorities, including
responsibility determinations in future contracts. Attachment 7 lists the regulation,
provisions, and contract remedies available to us in the events of non-compliance
with the DBE regulation by a participant in our DBE Program.
We 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. We will implement a monitoring and enforcement mechanism that will include written
certification that we have reviewed contracting records and monitored work sites for
this purpose. This will be accomplished by subcontractor verification through onsite
construction observation, review of letter of intent commitments submitted by the
prime contractor, and requests of statement of final amounts paid to DBE
subcontractors at project closeout
5. We 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. In our reports of DBE participation to
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DOT, we will show both commitments and attainments, as required by the DOT
uniform reporting form.
Section 26.39 Fostering small business participation.
The County of Kittitas, WA 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 County of Kittitas, WA's small business element is incorporated as Attachment 10
to this DBE Program. We will actively implement the program elements to foster small
business participation; doing so is a requirement of good faith implementation of our
DBE program.
SUBPART C — GOALS, GOOD FAITH EFFORTS, AND COUNTING
Section 26.43 Set -asides or Quotas
The County of Kittitas, WA does not use quotas in any way in the administration of this
DBE program.
Section 26.45 Overall Goals
The County of Kittitas, WA will establish an overall DBE goal covering a three-year
federal fiscal year period if we anticipate awarding DOT/FAA funded prime contracts the
cumulative total value of which exceeds $250,000 during any one or more of the
reporting fiscal years within the three-year goal period. In accordance with Section
26.45(b)the County of Kittitas, WA will submit its Overall Three-year DBE Goal to FAA
by August 1 st as required by the established schedule below.
Airport Type
Large & Medium
Hub Primary
Small Hub
Primary
Non -Hub Primary
Non -Primary
(GAs, Relievers
and State DOTs)
Region
All Regions
All Regions
All Regions
Central,
Southwest, and
Western -Pacific
Date Due
(Goal Period)
August 1, 2013
(2014/2015/2016)
August 1, 2014
(2015/2016/2017)
August 1, 2015
(2016/2017/2018)
August 1, 2015
(2016/2017/2018)
Next Goal Due
(Goal Period)
August 1, 2016
(2017/2018/2019)
August 1, 2017
(2018/2019/2020)
August 1, 2018
(2019/2010/2021)
August 1, 2018
(2019/2020/2021)
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The DBE goals will be established in accordance with the 2 -step process as specified in
49 CFR Part 26.45. If the County of Kittitas, WA 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, we will not develop an
overall goal; however this DBE Program will remain in effect and the County of Kittitas,
WA will seek to fulfill the objectives outlined in 49 CFR Part 26.1.
(a) Step 1. The first step is to determine the relative availability of DBEs in the
market area, "base figure". We will use DBE Directories and Census Bureau
Data as a method to determine our base figure. 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.
Any methodology we choose 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 our market. We understand 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.]
Step 2. Once we have calculated a base figure, we will examine all of the
evidence available in our jurisdiction to determine what adjustment, if any, is
needed to the base figure to arrive at our overall goal. If the evidence does not
suggest an adjustment is necessary, then no adjustment shall be made.
26.45 (b) In establishing the overall goal, the County of Kittitas, WA 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 County of Kittitas, WA'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 possible focused on obtaining
information relevant to the County of Kittitas, WA's goal setting process, and it will occur
before we are required to submit our goal methodology to the operating administration
for review pursuant to paragraph (f) of this section. We will document in our goal
submission the consultation process that we engaged in. Notwithstanding paragraph
(f)(4) of this section, we will not implement our proposed goal until we have complied
with this requirement.
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In addition, the County of Kittitas, WA will publish a notice announcing our proposed
overall goal before submission to the operating administration on August 1st. The
notice will be posted on our official internet web site and may be posted in any other
sources (e.g., minority -focused media, trade association publications). If the proposed
goal changes following review by the operating administration, the revised goal will be
posted on our official internet web site. We will inform the public that the proposed
overall goal and its rationale are available for inspection during normal business hours
at our principal office and that the County of Kittitas, WA 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 (including offices and
websites) where the proposal may be reviewed. The public comment period will not
extend the August 1St deadline.
Our 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
our responses.
We will begin using our overall goal on October 1 of the reporting period, unless we
have received other instructions from DOT.
Section 26.45 (c) - Project Goals
If permitted or required by the FAA Administrator we will express our 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 the appropriate operating
administration. 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 are separated from the base from which your regular overall goal,
applicable to contracts not part of the project covered by a project goal, is calculated.
If we establish a goal on a project basis, we will begin using our goal by the time of the
first solicitation for a DOT -assisted contract for the project.
Section 26.45(d) - Prior Operating Administration Concurrent
The County of Kittitas, WA understands that we are not required to obtain prior
operating administration concurrence with our overall goal. However, if the operating
administration's review suggests that our overall goal has not been correctly calculated
or that our method for calculating goals is inadequate, the operating administration may,
after consulting with us, adjust our overall goal or require that we do so. The adjusted
overall goal is binding. In evaluating the adequacy or soundness of the methodology
used to derive the overall goal, the U.S. DOT operating administration will be guided by
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the goal setting principles and best practices identified by the Department 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 5 to this program.
Section 26.47 Failure to meet overall goals.
The County of Kittitas, WA will maintain an approved DBE Program and overall DBE
goal, if applicable as well as administer our DBE Program in good faith to be considered
to be in compliance with this part.
If the County of Kittitas, WA awards and commitments shown on our 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, we will do the following in order to be regarded
by the Department as implementing your DBE Program in good faith:
(1) Analyze in detail the reasons for the difference between the overall goal and
our awards and commitments in that fiscal year;
(2) Establish specific steps and milestones to correct the problems we have
identified in our analysis and to enable us to meet fully your goal for the new
fiscal year;
(3) The County of Kittitas, WA will prepare, within 90 days of the end of the fiscal
year, the analysis and corrective actions developed under paragraph (1) and (2)
of this section. We will retain copy of analysis and corrective actions in records
for a minimum of three years, and will make it available to FAA upon request.
Section 26.51(a Breakout of Estimated Race -Neutral & Race -Conscious
Participation
(a) The County of Kittitas, WA 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
small businesses, by means such as those provided under §26.39 of this part.
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(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, on recipient mailing lists for bidders; ensuring
the dissemination to bidders on prime contracts of lists of potential
subcontractors; provision of information in languages other than English, where
appropriate);
(5) Providing services to help DBEs, and other small businesses, increase
opportunities to participate in a variety of kinds of work, handle increasingly
significant projects, and achieve eventual self-sufficiency;
(6) Assist new, start-up firms, particularly in fields in which DBE participation has
historically been low;
(7) Ensuring distribution of your DBE directory, through print and electronic
means, to the widest feasible universe of potential prime contractors; and
(8) Assisting DBEs, and other small businesses, to develop their capability to
utilize emerging technology and conduct business through electronic media.
The breakout of estimated race -neutral and race -conscious participation can be found in
Attachment 5 to this program.
Section 26.51(b) Contract Goals
The County of Kittitas, WA will arrange 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 small
businesses, by means such as those provided under § 26.39..
If our approved projection under paragraph (b) of this section estimates that we can
meet our entire overall goal for a given year through race -neutral means, we will
implement our program without setting contract goals during that year, unless it
becomes necessary in order to meet our overall goal.
We will establish contract goals only on those DOT -assisted contracts that have
subcontracting possibilities. We need not establish a contract goal on every such
contract, and the size of contract goals will be adapted to the circumstances of each
Page 13 of 43
August 19, 2015
such contract (e.g., type and location of work, availability of DBEs to perform the
particular type of work.)
We will express our contract goals as a percentage of the total amount of a DOT -
assisted contract.
Section 26.53 Good Faith Efforts Procedures
Demonstration of good faith efforts (26.53(a)
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.
Candie Leader, Administrative Assistant, is responsible for determining whether a
bidder/offeror who has not met the contract goal has documented sufficient good faith
efforts to be regarded as Responsive.
We will ensure that all information is complete and accurate and adequately documents
the bidder/offeror's good faith efforts before we commit 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, we 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;
(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 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.
(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
Page 14 of 43
August 19, 2015
(3) We will require that the bidder/offeror present the information required by
paragraph (b)(2) of this section.
Administrative reconsideration (26.53(c))
Within 2business days of being informed by the County of Kittitas, WA 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 the following reconsideration official:
Candie Leader
411 N Ruby St
Suite 1
Ellensburg, WA 98926
(509) 962-7699
ca nd ie.leaderpco. kittitas.wa. us
The reconsideration official will not have played any role in the original determination
that the bidder/offeror did not document sufficient good faith efforts.
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 our reconsideration official to discuss the issue of whether it met
the goal or made adequate good faith efforts to do. We 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(
We 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 your
written consent; and
That, unless our consent is provided, the contractor shall not be entitled to any
payment for work or material unless it is performed or supplied by the listed DBE.
We 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
Page 15 of 43
August 19, 2015
subcontract and all lower tier subcontractors be performed in accordance with this part's
provisions.
In this situation, we will require the prime contractor to obtain our prior approval of the
substitute DBE and to provide copies of new or amended subcontracts, or
documentation of good faith efforts.
We 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 our prior written consent. This includes, but 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.
We will provide such written consent only if we agree, for reasons stated in our
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;
(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;
(4) The listed DBE subcontractor fails or refuses to meet the prime contractor's
reasonable, non-discriminatory bond requirements.
(5) The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit
unworthiness;
(6) 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;
(7) We have determined that the listed DBE subcontractor is not a responsible
contractor;
(8) The listed DBE subcontractor voluntarily withdraws from the project and
provides to us written notice of its withdrawal;
(9) The listed DBE is ineligible to receive DBE credit for the type of work
required;
(10) A DBE owner dies or becomes disabled with the result that the listed DBE
contractor is unable to complete its work on the contract;
(11) Other documented good cause that we have 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.
Page 16 of 43
August 19, 2015
Before transmitting to us 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
us, 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 we should not approve the prime
contractor's action. If required in a particular case as a matter of public necessity (e.g.,
safety), we 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 County of Kittitas, WA 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
terminated, to the extent needed to meet the contract goal that we established for the
procurement. The good faith efforts shall be documented by the contractor. If we
request 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.
We 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 we deem 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, our contracting office will
issue an order stopping all or part of payment/work until satisfactory action has been
taken. If the contractor still fails to comply, the contracting officer 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 County of Kittitas, WA
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 0 percent as determined in the goal calculation
Page 17 of 43
August 19, 2015
Attachment 5 has been established for this contract. The bidder/offeror shall
make good faith efforts, as defined in Appendix A, 49 CFR Part 26 (Attachment
1), 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.
Section 26.55 Counting DBE Participation
We will count DBE participation toward overall and contract goals as provided in 49
CFR 26.55. We 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, we 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
County of Kittitas, WA will use the certification standards of Subpart D of Part 26 to
determine the eligibility of firms to participate as DBEs in DOT -assisted contracts. To
be certified as a DBE, a firm must meet all certification eligibility standards. We will
make our certification decisions based on the facts as a whole.
For information about the certification process or to apply for certification, firms should
contact:
OMWBE —Certifications
210 11th Avenue SW, Suite 401
Olympia, WA 98504-1160
360-664-9750
http://omwbe.wa.gov/certification/
Page 18 of 43
August 19, 2015
SUBPART E — CERTIFICATION PROCEDURES
Section 26.81 Unified Certification Programs
OMWBE, provides certification services for DBE and Small Businesses. The OMWBE
maintains a directory of certified firms and maintains procedures for certification.
The County of Kittitas, WA relies on the OMWBE Office certification process. A link to
the OMWBE Office is included in Attachment 9.
SUBPART F — COMPLIANCE AND ENFORCEMENT
Section 26.109 Information, Confidentiality, Cooperation and intimidation or
retaliation
We will safeguard from disclosure to third parties information that may reasonably be
regarded as confidential business information, consistent with Federal, state, and local
law.
To the extent allowed by any provision of federal or state law, we 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.
This includes applications for DBE certification and supporting information. However,
we will transmit this information to DOT in any certification appeal proceeding under §
26.89 of this part or to any other state to which the individual's firm has applied for
certification under § 26.85 of this part.
All participants in the Department's DBE program (including, but not limited to,
recipients, DBE firms and applicants for DBE certification, complainants and appellants,
and contractors using DBE firms to meet contract goals) are 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 County of Kittitas, WA, 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 we violate this
prohibition, we are in noncompliance with this part.
Page 19 of 43
August 19, 2015
ATTACHMENTS
Attachment 1
Regulations: 49 CFR Part 26 or website link
Attachment 2
Organizational Chart
Attachment 3
Bidder's List Collection Form
Attachment 4
DBE Directory or link to DBE Directory
Attachment 5
Overall Goal Calculations
Attachment 6
Demonstration of Good Faith Efforts or Good Faith Effort Plan -
Forms 1 & 2
Attachment 7
DBE Monitoring and Enforcement Mechanisms
Attachment 8
DBE Certification Application Form
Attachment 9
State's UCP Agreement
Attachment 10
Small Business Element Program
Page 20 of 43
August 19, 2015
ATTACHMENT
Regulations: 49 CFR Part 26, or link to website
http://www.ecfr.gov/cqi-bin/text-idx?tpl=/ecfrbrowse/Title49/49cfr26 main 02.tpl
Page 21 of 43
ATTACHMENT
August 19, 2015
Page 22 of 43
August 19, 2015
ATTACHMENT
Bidder's List Collection Form
SAMPLE BIDDERS LIST COLLECTION FORM)
Page 23 of 43
DBE or Non -
Firm
DBE Status
Firm Name
Address/
(verify via
Age of Firm
Annual Gross Receipts
Phone #
State's UCP
Directory)
❑ Less than 1 year
❑ Less than $500K
❑ 1- 3 years
❑ $500K - $1 million
❑ 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
❑ $500K - $1 million
❑ 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
❑ $500K - $1 million
❑ 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
❑ $500K - $1 million
❑ 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
❑ $500K - $1 million
❑ 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
❑ $500K - $1 million
❑ 4-7 years
❑ $1-2 million
❑ 8-10 years
❑ $2-5 million
❑ More than 10 years
❑ Greater than $5 million
Page 23 of 43
August 19, 2015
ATTACHMENT 4
Washington DBE Directory or (web link to DBE directory)
http://wsdot.wa.gov/Partners/OMWBE/DBEDirectory/
Page 24 of 43
August 19, 2015
ATTACHMENT 5
Section 26.45: Overall DBE Three -Year Goal Methodology
Name of Recipient: County of Kittitas, WA, owner of Bowers Field
Goal Period: FY -2015-2016-2017 — (October 01, 2015 through October 01, 2017)
DOT -assisted contract amount: FY -2015 $ 317,395
FY -2016 $ 0
FY -2017 $ 0
Total $ 317,395
Overall Three -Year Goal: _0 %, to be accomplished through _0% RC and _0% RN
(Note: the goal may be reflected as (1) an average of the three years, (2) three year Median; or
(3) weighted percentage)
Total dollar amount to be expended on DBE's: 0 [multiply goal % x DOT -assisted
amount]
Describe the Number and Type of Contracts that the airport anticipates awarding:
[List all contracts for which you anticipate receiving funding, only include the DOT funded
portion of the contract.]
Contracts Fiscal Year #1
1. Airport Master Plan Update and AGIS - $317,395
2.
3.
Contracts Fiscal Year #2
1.
2.
3.
Contracts Fiscal Year #3
1.
2.
3.
Market Area The market area considered for construction work at the Bowers Field included
Kittitas and the two adjacent counties of Yakima and Chelan.
Step 1. 26.45(c) Actual relative availability of DBE's
Determine the base figure for the relative availability of DBEs. The base figure for the relative
availability was calculated as follows:
Page 25 of 43
August 19, 2015
(Part 26.45 allows for the goal to be set 1 of 5 different methods. The example provided below
is the most often used and recommended. The DBE Program Regulation can be found at
http://www. dot aov/osdbu/disadvantaaed-business-enterprise or
Method: Use DBE Directories http://www.dot.gov/osdbu/disadvantaged-business-
enterprise/state-dot-and-d be -program -websites
and Census Bureau Data hftp://www.census.gov/econ/cbp/index.htmi
[For each Contract and each fiscal year, please provide the following information]
NAICS
Type of Work
Total DBE's
Total All Firms
541330
Engineering
Services
0
40
Total
0
40
Divide the total number of DBE's by the total number of All Firms = base figure for each
contract. (Weighting is not mandatory, but is encouraged for a more accurate base figure)
Base figure = 0% of all firms ready, willing and able.
The data source or demonstrable evidence used to derive the numerator was: a search of the
Oregon State Certification directory (OMWESB Certification Management System) for each of
the NAICS codes in a four county area.
The data source or demonstrable evidence used to derive the denominator was: a search of US
Census Bureau data for the number of businesses registered for each of the NAICS codes in a
four county area.
Step 2. 26.45(d): Adjustments to Step 1 base figure.
After calculating a base figure of the relative availability of DBEs, evidence was examined to
determine what adjustment (if any) was needed to the base figure in order to arrive at the
overall goal.
An examination of the anticipated contracts for each fiscal year, the availability of the DBE firms
by trade classification and the volume of work performed by DBE firms over previous years.
Page 26 of 43
August 19, 2015
Fiscal Year#1
For FY -2015, we anticipate the award of the followinq:
Contract Name
Trade Description
NAICS Description
NAICS
Trade ($) Cuss Directory D%) BE DBE ($)
(
= GIF)=ExH)
Project#1
Engineering
Services
Engineering
Services
541330
317,359 15 0 0% $0
Total Contract
Total Contract
Total FY -20X)(
Total Contract
Total FY-20XX
Total Contract
317,359 15 0 0% $0
Total Contract
317,359 15 0
0%
$0
Total FY -2015
317,359 0% $0
Fiscal Year #2
For FY-20XX, we anticipate the award of the followina:
Contract Name
Trade Description NAICS Description
NAICS Trade ($) Census Directory DBE (%) DBE ($)
=GIF) =ExH
Total Contract
Total Contract
Total FY -20X)(
Fiscal Year #3
For FY-20XX, we anticipate the award of the followina:
Contract Name
Trade Description
NAICS Description NAICS Trade ($) Census DirectoryDBE (%) DBE ($)
=GIF) Ex H)
Total Contract
Total Contract
Total FY-20XX
Past History Participation
Page 27 of 43
August 19, 2015
The airport has not had any recent projects or goalslaccomplishments.
FY Total Grant $ Amount DBE Goals Accom lishments Type of work
RcT RN Total RC RN Total
FY10
FY 11
FY 12
FY 13
FY 14
The proposed Overall DBE Goals are as follows:
• Fiscal Year #1— 0%
• Fiscal Year #2 —no anticipated projects
• Fiscal Year #3 — no anticipated projects
Our proposed overall three year goal will be reflected as — 0%
There is no historical DBE data to reference to make an adjustment to the Step 1 base figure
therefore, the Airport Authority is adopting its Step 1 base figure as its overall goal for this three-
year goal period.
Should additional project funding become available for projects in 2016 or 2017, the airport will
reassess the available DBE firms and adjust the goal accordingly.
Breakout of Estimated "Race and Gender Neutral" (RN) and "Race and Gender
Conscious" (RC) Participation.
26.51(b) (1-9)
The recipient will meet the maximum feasible portion of its overall goal by using RN means of
facilitating DBE participation.
1. Arranging solicitations, times for the presentation of bids, quantities, specifications,
and delivery schedules in ways that facilitates DBE, and other small businesses,
participation;
2. Ensuring distribution of DBE directory, through print and electronic means, to the
widest feasible universe of potential prime contractors,-
The
ontractors,
The recipient estimates that in meeting its overall goal 0%, it will obtain 0% from RN
participation and 0% through RC measures.
The County of Kittitas, WA will adjust the estimated breakout of RN and RC DBE participation
as needed to reflect actual DBE participation (see Section 26.51(f)) and track and report RN and
RC participation separately. For reporting purposes, RN DBE participation includes, but is not
necessarily limited to, the following: DBE participation through a prime contract obtained
through customary competitive procurement procedures; DBE participation through a
subcontract on a prime contract that does not carry a DBE goal, DBE participation on a prime
contract exceeding a contract goal and DBE participation through a subcontract from a prime
contractor that did not consider a firm's DBE status in making the award.
Page 28 of 43
PUBLIC PARTICIPATION
Consultation: Section 26.45(g)(1)
August 19, 2015
In establishing the overall goal, the County of Kittitas, WA 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 County of Kittitas, WA'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 possible focused on obtaining
information relevant to the County of Kittitas, WA's goal setting process, and it will occur
before we are required to submit our goal methodology to the operating administration for
review pursuant to paragraph (f) of this section. We will document in our goal submission the
consultation process that we engaged in. Notwithstanding paragraph (f)(4) of this section, we
will not implement our proposed goal until we have complied with this requirement.
The County of Kittitas, WA submits its overall DBE three-year goal to DOT on August 1 as
required by the set schedule.
Before establishing the overall goal, the County of Kittitas, WA will consult with the OMWESB
Certification Management System to obtain information concerning the availability of
disadvantaged and non -disadvantaged businesses, the effects of discrimination on
opportunities for DBEs, and the County of Kittitas, WA efforts to establish a level playing field
for the participation of DBEs
Following the consultation, we will publish a notice in the PUBLICATION of the proposed overall
goal, informing the public that the proposed goal and its rationale are available for inspection
during normal business hours at the airport administration building for 30 days following the date
of the notice, and informing the public that the County of Kittitas, WA and DOT will accept
comments on the goals for 30 days from the date of the notice
Our overall goal submission to DOT will include a summary of information and comments
received during this public participation process and our responses, if any.
The following comments were received: [discuss comments]
OR
No comments have been received.
Page 29 of 43
Sample Public Notice Language:
PUBLIC NOTICE
August 19, 2015
The County of Kittitas, WA hereby announces its fiscal years 2015 through 2017 goal of 0%
for Disadvantaged Business Enterprise (DBE) airport construction Contracts. The proposed
goals and rationale is available for inspection between 8:00 a.m. and 5:00 p.m., Monday
through Friday at 411 N Ruby St, Ellensburg, WA 98926 for 30 days from the date of this
publication.
Comments on the DBE goal will be accepted for 30 days from the date of this publication and
can be sent to the following:
UL41 e]
DBELO
Candie Leader
Administrative Assistant
411 N Ruby St
Ellensburg
WA 98926
candie.leader@co.kittitas.wa.us
Federal Aviation Administration
Office of Civil Rights Staff
Ricky Watson, MBA
DBE & ACDBE Compliance Specialist
Alaskan Region & Northwest Mountain Region
Federal Aviation Administration
Office of Civil Rights, AWP -9
15000 Aviation Boulevards
Lawndale, California 90261
Mailing Address:
P.O. Box 92007
Los Angeles, California 90009-2007
Office: (310) 725-3940
Fax: (310) 725-6819
Email: ricky.watson@faa.gov
Contract Goals
The County of Kittitas, WA will use contract goals to meet any portion of the overall goal that the
recipient does not project being able to meet using RN 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 recipient's overall goal that is not projected to be met through the use of RN
means.
Page 30 of 43
August 19, 2015
The County of Kittitas, WA will establish contract goals only on those DOT -assisted contracts
that have subcontracting possibilities. It need not establish a contract goal on every such
contract, and the size of the contract goals will be adapted to the circumstances of each such
contract (e.g., type and location of work and availability of DBE's to perform the particular type
of work).
We will express our contract goals as a percentage of the Federal share of a DOT -assisted
contract.
Page 31 of 43
August 19, 2015
ATTACHMENT 6
Demonstration of Good Faith Efforts - Forms 1 & 2
[Forms 1 and 2 should be provided as part of the solicitation documents.]
FORM 1: DISADVANTAGED BUSINESS ENTERPRISE (DBE) UTILIZATION
The undersigned bidder/offeror has satisfied the requirements of the bid specification in the
following manner (please check the appropriate space):
The bidder/offeror is committed to a minimum of _ % DBE utilization on this
contract.
The bidder/offeror (if unable to meet the DBE goal of _%) is committed to a
minimum of _% DBE utilization on this contract and should submit documentation
demonstrating good faith efforts.
Name of bidder/offeror's firm:
State Registration No.
By
(Signature)
Title
Page 32 of 43
August 19, 2015
Name of bidder/offeror's firm:
Address:
City:
Name of DBE firm:
Address:
City:
Telephone:
FORM 2: LETTER OF INTENT
State: Zip:
State: Zip:
Description of work to be performed by DBE firm:
The bidder/offeror is committed to utilizing the above-named DBE firm for the work described
above. The estimated dollar value of this work is $
Affirmation
The above-named DBE firm affirms that it will perform the portion of the contract for the
estimated dollar value as stated above and that the firm is DBE certified to perform the specific
trades.
a
(Signature)
(Title)
Date:
If the bidder/offeror does not receive award of the prime contract, any and all
representations in this Letter of Intent and Affirmation shall be null and void.
Submit this page for each DBE subcontractor.
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August 19, 2015
ATTACHMENT
DBE Monitorinc and Enforcement Mechanisms
The County of Kittitas, WA has available several remedies to enforce the DBE requirements
contained in its contracts, including, but not limited to, the following:
1. Breach of contract action, pursuant to the terms of the contract;
2. Breach of contract action, pursuant to State Codes
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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August 19, 2015
ATTACHMENT
DBE Certification Application Form
(New form October 2, 2014)
http://www.dot.gov/sites/dot.gov/files/docs/New%20DBE%20Certification%20Application%2011-
18-2014. pdf
Page 35 of 43
ATTACHMENT
State's UCP Agreement
http://omwbe.wa.gov
August 19, 2015
Page 36 of 43
August 19, 2015
ATTACHMENT 10
Small Business Element
It is recommended that you include the following components and notes:
1. Objective/Strategies
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 "megaprojects')
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.
2. Definition
• DBE firms should be identified in the Small Business element of the recipient's DBE
program as eligible for the program unless there is a DBE micro -Small Business
Program element in place.
• Size standard should be consistent with 49 CFR 26.5 and must be no larger than the
Small Business Administration's size standards. DBE firms and small firms eligible for
the program should be similarly sized to reduce competitive conflict between DBE and
non -DBE firms.
• Personal Net Worth standards (optional) — should be consistent with 49 CFR Part 26
thresholds.
3. Verification
• Should diligently attempt to minimize fraud and abuse in the SB element of its DBE
program by verifying program eligibility of firms.
4. Monitoring/Record Keeping
• How will the information will be organized (for counting purposes)
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August 19, 2015
• SB element should be reasonably monitored
6. Implementation Timeline
• Identify implementation schedule timeline, within 6 or 9 months of FAA's approval.
6. Assurance
• Include the following assurances:
1. assurance that the program is authorized under state law,
2. assurance that certified DBEs that meet the size criteria established under the
program are presumptively eligible to participate in the program;
3. assurance that there are no geographic preferences or limitations imposed on any
federally assisted procurement included in the program;
4. assurance that there are no limits on the number of contracts awarded to firms
participating in the program but that every effort will be made to avoid creating
barriers to the use of new, emerging, or untried businesses; and
5. assurance that aggressive steps will be taken to encourage those minority and
women owned firms that are eligible for DBE certification to become certified.
6. assurance that the program is open to small businesses regardless of their
location (i.e., that there is no local or other geographic preference).
Page 38 of 43
Appendix A
August 19, 2015
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.
Il. 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 emails to all 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.
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August 19, 2015
C. Providing interested DBEs with adequate information about the plans, specifications, and
requirements of the contract in a timely manner to assist them in responding to a solicitation with their
offer for the subcontract.
D. (1) Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a
portion of the work available to DBE subcontractors and suppliers and to select those portions of the work
or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE
participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of
DBEs that were considered; a description of the information provided regarding the plans and
specifications for the work selected for subcontracting; and evidence as to why additional Agreements
could not be reached for DBEs to perform the work.
(2) A bidder using good business judgment would consider a number of factors in negotiating with
subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as
contract goals into consideration. However, the fact that there may be some additional costs involved in
finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE
goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the
work of a contract with its own organization does not relieve the bidder of the responsibility to make good
faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price
difference is excessive or unreasonable.
E. (1) Not rejecting DBEs as being unqualified without sound reasons based on a thorough
investigation of their capabilities. The contractor's standing within its industry, membership in specific
groups, organizations, or associations and political or social affiliations (for example union vs. non-union
status) are not legitimate causes for the rejection or non -solicitation of bids in the contractor's efforts to
meet the project goal. Another practice considered an insufficient good faith effort is the rejection of the
DBE because its quotation for the work was not the lowest received. However, nothing in this paragraph
shall be construed to require the bidder or prime contractor to accept unreasonable quotes in order to
satisfy contract goals.
(2) A prime contractor's inability to find a replacement DBE at the original price is not alone sufficient
to support a finding that good faith efforts have been made to replace the original DBE. The fact that the
contractor has the ability and/or desire to perform the contract work with its own forces does not relieve
the contractor of the obligation to make good faith efforts to find a replacement DBE, and it is not a sound
basis for rejecting a prospective replacement DBE's reasonable quote.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as
required by the recipient or contractor.
G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials,
or related assistance or services.
H. Effectively using the services of available minority/women community organizations;
minority/women contractors' groups; local, State, and Federal minority/women business assistance
offices; and other organizations as allowed on a case-by-case basis to provide assistance in the
recruitment and placement of DBEs.
V. In determining whether a bidder has made good faith efforts, it is essential to scrutinize its
documented efforts. At a minimum, you must review the performance of other bidders in meeting the
contract goal. For example, when the apparent successful bidder fails to meet the contract goal, but
others meet it, you may reasonably raise the question of whether, with additional efforts, the apparent
successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but
meets or exceeds the average DBE participation obtained by other bidders, you may view this, in
conjunction with other factors, as evidence of the apparent successful bidder having made good faith
efforts. As provided in §26.53(b)(2)((vi), you must also require the contractor to submit copies of each
Page 40 of 43
August 19, 2015
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 to review whether DBE prices were substantially higher; and
contact the DBEs listed on a contractor's solicitation to inquire as to whether they were contacted by the
prime. Pro forma mailings to DBEs requesting bids are not alone sufficient to satisfy good faith efforts
under the rule.
VI. A promise to use DBEs after contract award is not considered to be responsive to the contract
solicitation or to constitute good faith efforts.
[79 FR 59600, Oct. 2, 20141
Page 41 of 43
August 19, 2015
APPENDIX B
The spreadsheet can be found at
http://www.fta.dot.gov/documents/Semi Annual Report with Functions.xis
Page 42 of 43
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Page 42 of 43
August 19, 2015
INSTRUCTIONS FOR COMPLETING THE UNIFORM REPORT OF DBE AWARDS/COMMITMENTS AND PAS'MENTS
1. Indicate the DOT Operating Administration (GA) that provides your 8(H). From the total another of prime contmets awarded in S(D),
Federal financial assistance. 11assistance comes from mere than one specify the number awarded to DBEs through Race Neutral methods.
OA, use separate reporting forms for each OA. If you arc an FTA
recipient, indicate your Vendor Number in the space provided. S(1). Of all prime connects awarded this reporting period, calculate lire
pereentace going to DBEs. Divide the dollar amount in item 8(C) by
If you am an FAA revision, indicate the relevant All' Numbers the dollar amount in hent RIA) to derive this percentage. Round
covered by this report. If more than six, attach a mparaw shell. percentage m the nearest tenth.
3. Specify the Federal fiscal year (i.e. October 1 -September 30) in
which the covered reporting period falls.
4. Slate the dare ofsuhmissum of this repro.
5. Check the appropriate box that indicates the reposing period that
the data provided in this repart covers. If this report is due June I,
data should cover Ocmhcr I - March 31. IFthis report is due December
L data should cover April 1 - September 30.
G. Name ofthe recipient.
7. State your annual DBE goals) established for the Federal fiscal
year of this Spon to be submitted to and approved by the relcvaal OA.
Your Overall Goal is to be reported as well as the breakdown for
specific Race Conscious and Race Neutral Goals (both of which
include gender-comcioutinwtral goals). The Rate Conscious God
portion should be based on programs Ihm focus an and provide benclits
only for DBEs. The use of contract goals is a armory example of a
mce conscious measure. The Race Neutral Goal portion should include
programa that, while benefiting DBEs, are not solely focused on DBE
films. For example, a small business outreach program, technical
assistance, and prompl payment clauses can assist a wide variety of
businesses in addition to helping DBE films,
9-9. The amounts in items 8(A) -9(p should include all apes of prime
contracts awarded and all types of surknnuacts awarded or committed.
including: professional or consul[am services, consone inn, purchase of
materials or supplies, lease or purchase of equipment and any other
types of services. All dollar amounts arc to reflect only the Federal
share of such contracts. and should be rounded to the nowed dollar
g(A). provide the total dollar amount for all prinne contracts assisted
with DOT Ponds that were awarded during this reporting period.
8(B), provide ncc Intal number of all prime contracts assisted with
DO'f funds that were awarded during this reporting period.
8(C). Prom the real dollar amount awarded in item h(A), provide the
dnllar.,worm awarded to emitted 1)BF.s during this reporting perhd.
S(D). From the total number of prime contracts awarded in item 8(B).
specify the number awarded to eerliftui DBEs during this reporting
period.
IRE). From the Iota] dollars awarded in RIC), provide the dollar
anlotmr awarded to DBEs though the use of Race Conscious methods.
See the definition of Race Conscious Goal in item 7 and the
explanation in item 8 of project types to include in your calculation.
SIT). From the total number of prime contracts awarded in R(D),
specify theun mber awarded to DBEs through Race Conscious
methods.
S(G). From Me tots] dollar amount awarded in item MC). provide the
dollen amount awarded to ccoifed DBEs through the use of Race
Neutral methods. Sec the definition of Race Neutral Goal in item 7
and the explanation in item S ofproject types to include.
91A) -91p. Items 9(A)-90) are danced in the same way as items RAF
R@. except that these calculations should be based on subcontracts
rather than prime contmets. Unlike prime contracts. which may only
he owarded. suhcnnvacts may bra either awarded or commined.
10(A) -I I(1). For all DBEs awarded prime contracts and awarlcd or
committed subcontracts as indicated in 8(C) -ID) and 9(C) -(D), break
the dant down further by total dollar amount as well as the number of
all contracts going (a each ethnic group as well as to non -minority
women. The "Other'- category includes those DBEs who arc not
members of the presumptively disadvantaged groups already bond, but
who arc determined eligible for life DBE program on an individual
basis (e.g, a Caucasian mule u'bll, a disability). The '1'O'I'ALS value in
1(RH) should equal the sum of 8(C) plus 9(C), and similarly', the
TOTALS value in I1(H) should equal the sun of 8(D) plus 9(D).
Column I should only be filled out if this report is due on December I,
as indicated in item 5. The values fm' [his column are derived by
adding the values reported in cultural H in your fins report with the
,allies mpnned m this secind repon.
12(A). Provide the rood number of prime contracts completed during
this rep.m., period that had Race Conscious goals. Race Cmesenne
contracts are Ilmse with contract goals or another race conscious
measure.
12(8). Provide the total dollar %mine of prime contracts completed this
retaining period that had race conscious goals.
12(CI. Provide the total dollar amount of DBE participation on all
Race Conscious prints contracts completed this repining period that
was necessary to ices the contract goals on then. This applies only to
Race Conscious prime contracts.
12(D). Provide the actual total UBC participation in dollars on the race
conscious prime contracts completed this mimming period.
12(E). Of all the prime contracts completed this reporting period.
calculate the percentage of DUE participation. Divide the actual total
dollar amount in 12(D) by the total dollar value provided in 12(B) to
derive tilts percentage. Round to lite nearest wall,
13(A) -13(E). Items 13(A) -13(E) are derived in the same manner as
items 12(A).12(E), except these figores should be based an Race
Neutral prime contacts lie, those with no care conscious measures).
144A) -14(E). Calculate the foals for each column by adding the race
conscious and neutral figures provided in each row above.
15. Name ofthe Authorized Rcpmsentative preparing this from.
16. Signamn oftbe Authorized Repmsmative.
IT Phonenumberofthe Aulhon7.cd Reprcrxnlative.
18. Fax number of the Authorized Representative.
*•Submit your rempleted repart la your Reglan] ar Division Onfrs.
Page 43 of 43