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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/. Page 1 of 43 August 19, 2015 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 Page 2 of 43 August 19, 2015 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 Page 3 of 43 August 19, 2015 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: Page 4 of 43 August 19, 2015 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. Page 5 of 43 August 19, 2015 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 Page 6 of 43 August 19, 2015 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 Page 7 of 43 August 19, 2015 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 Page 8 of 43 August 19, 2015 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) Page 9 of 43 August 19, 2015 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. Page 10 of 43 August 19, 2015 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 Page 11 of 43 August 19, 2015 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. Page 12 of 43 August 19, 2015 (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. Page 33 of 43 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. Page 34 of 43 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) Page 37 of 43 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. Page 39 of 43 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 UNIFORM REYORT OF OBE COMM MEMTLRWMDS MO PpY WS Nx. Gv[xuL cea awawwcoxxml eR.xYL OUItW4n11a REPpIMIEYERgG rwrx.mr., r rmueE. rw moeE: rm woRE. rm.rm rooumi 'M Ipv paEypq a.rww. ca..wa wnw enm pRExTap CBEMeu r u.i w.x.� r.Rx�laa.a Idtl Jiveb oaz. . e . mExra rxB OVORnxaakaw[ERpO-0RFIxYONM xx ¢ x.M bml Man xxrmPxih mb �� o� n. rrn oras wrx, .^YaP � =) mxl vee..F. T—.a aCNKYAYYENRdEONIMCia CMR[Rn msl¢PwmM4 FEAMp w ml MlsvtlueN OBE PogngWn x.byle �CanW�Mv cmvur. CUMaua wn Em lmsel i N eW O�xvv7 PxrdM1wr 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