§ 28-204. Definitions.

As used in this article VII, the following words and phrases shall have the following meanings, unless otherwise clearly required by the context:

(1)

Affiliate means any business enterprise that is affiliated with an SBE or with the owner(s) of such SBE. Business enterprises are affiliates of each other when one controls or has the power to control the other, or a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists. The director may utilize, in the interpretation of this definition, the definition of affiliate set forth in C.F.R. § 121 or successor regulation, as from time to time amended.

(2)

Applicant business enterprise means a business enterprise seeking to be certified as a small business enterprise under this article VII.

(3)

Bidder means a business enterprise that submits a bid on a construction contract that is offered for competitive bidding by the city or otherwise offered by a private owner.

(4)

Broker means a business enterprise that performs a commercially useful function as an intermediary, for a fee, in the acquisition of materials, supplies or equipment, regardless of whether or not it takes title to such materials, supplies or equipment, for the city or a private owner or its contractors, consultants or suppliers, but is not a manufacturer, manufacturer's representative or regular dealer. Only bona fide commissions earned by a broker for its activities in performing a commercially useful function on a city contract shall be counted toward legitimate participation by an SBE on such contract as set out in this article VII. A packager shall be considered and treated as a broker.

(5)

Business enterprise means an individual, sole proprietorship, corporation, limited liability company, partnership, limited partnership, limited liability limited partnership, joint stock company, joint venture, professional association or any other legal entity operated for profit that is properly licensed or registered, as applicable, owned, and controlled by persons who are citizens of the United States or lawful permanent residents of the United States, and otherwise authorized to do business in the State of Colorado.

(6)

Certification means completion by a business enterprise of an application procedure to be developed by the DSBO, and formal authorization by the director to participate as an SBE under this article VII. Certification neither represents nor implies that a business enterprise is qualified to perform on a contract or concession agreement, nor that it performs a commercially useful function.

(7)

City means the City and County of Denver and its participating user departments.

(8)

City project; city contract; city construction practices mean any contract or project encompassed within the definition of contract in this article VII, regardless of whether the project owner is the city or a private owner. All provisions of this article VII shall apply to such contracts let by private owners, provided that the city shall not dictate means and methods of construction to such private owners. Copies of all documents required to be provided by a subcontractor, subconsultant, supplier, manufacturer, manufacturer's representative or broker hereunder shall be sent to the director when the originals are sent to a private owner.

(9)

Commercially useful function means responsibility for the execution of a distinct element of the work of a contract or concession agreement that is carried out by a business enterprise actually performing, managing, and supervising the work involved, or fulfilling responsibilities as a joint venturer. To determine whether an SBE is performing a commercially useful function, the amount of work subcontracted, industry practices and other relevant factors shall be evaluated. Commercially useful function is measured for purposes of determining participation on a contract or concession agreement, not for determination of certification eligibility.

(10)

Competitive selection process has the meaning ascribed to that phrase in sections 2.3.(A) and 2.11.3(B) of the Denver City Charter, and in D.R.M.C. sections 5-19 and 20-56, as that meaning may pertain to a contract(s) at issue.

(11)

Concessionaire means a business enterprise that enters into a competitively selected or negotiated concession agreement with the city, in privity of contract with the city, for the operation of a retail, food service or other concession in a building, or aviation or aeronautical facility, or improvements thereto, situated on real property owned or operated by the city.

(12)

Concession agreement means any city agreement for the operation of a retail, food service or other concession authorized by any provision of the Charter or ordinances of the city, including, but not limited to, agreements awarded by competitive selection procedures or negotiated contracts, in a building, or aviation or aeronautical facility, or improvements thereto, situated on real property owned or operated by the city.

(13)

Conduit means an SBE that knowingly agrees to pass the scope of work for which it is listed for participation and is scheduled to perform or supply on a contract or concession agreement, to a non-SBE. In this type of relationship, the SBE has not performed a commercially useful function and the arranged agreement between the two (2) parties is not consistent with standard industry practice. This arrangement does not meet the commercially useful function requirement, and therefore the SBE's participation is not considered to be a legitimate portion of the work on the contract or concession agreement.

(14)

Construction means those areas of construction, reconstruction and remodeling as encompassed within the city's contracting processes authorized by the Charter and ordinances of the city. This definition shall encompass design-build contracts as appropriate.

(15)

Consultant means a business enterprise that enters into a negotiated contract with the city, in privity of contract with the city, for professional design and construction services or enters into such a contract with a private owner, in privity of contract with such private owner, for such services on a building or aviation or aeronautical facility, or improvements thereto, situated on real property owned by the city.

(16)

Contract means any city contract for construction or for professional design and construction services authorized by any provision of the Charter or ordinances of the city, excepting only those contracts subject to division of article III of this chapter 28, or to federal DBE requirements. Contract shall also include other contracts ancillary to cooperative agreements or understandings with other public and private agencies for purposes including the development of public facilities, park and recreational facilities, museums, zoological and other gardens, collections of natural history, and observatories, if such contracts provide for funding in whole or in part by the city and provide for utilization of such funds for the purpose of construction or professional design and construction services for any public facility or area owned or leased by the city or situated on real property owned or leased by the city. Notwithstanding the foregoing, contract shall also include construction or professional design and construction services for buildings or aviation or aeronautical facilities or improvements thereto, constructed by private owners on real property owned by the city, without regard to the utilization of city funding.

(17)

Contractor means a business enterprise that enters into a competitively bid, otherwise competitively selected or negotiated construction contract with the city, in privity of contract with the city, or enters into such a construction contract with a private owner, whether or not bid, in privity of contract with such private owner for such work on a building or aviation or aeronautical facility, or improvements thereto, situated on real property owned by the city. Contractor includes general contractors and prime contractors.

(18)

Day , unless otherwise indicated, means calendar day.

(19)

Defined selection pool contract or concession agreement means a contract or concession agreement which is determined by the director to be appropriate for restriction of the selection of the contractor, consultant or concessionaire and, as applicable, subcontractors, subconsultants and suppliers on such contract or concession agreement to the pool of certified SBEs or PBEs, as determined by the director.

(20)

Department head means the manager or director of the city department entering into contract(s) or concession agreement(s) with SBE(s), or such person's designee.

(21)

Design-build contract means a contract for the procurement of both the design and the construction, reconstruction or remodeling of a public work in a single contract with a single design-build contractor or combination of such contractors that are capable of providing the necessary design and construction, reconstruction or remodeling services.

(22)

Director means the director of the division of small business opportunity or successor agency, or such director's designee.

(23)

DSBO means the division of small business opportunity.

(24)

Emerging business enterprise or EBE means a business enterprise that is certified by the director under this article VII as meeting all of the requirements for certification set forth in sections 28-205 and 28-206.

(25)

Expertise means demonstrated skills, knowledge or ability to perform in the field of endeavor in which certification is sought by the business enterprise as defined by normal industry practices, including licensure or registration where required.

(26)

Joint venture means an association of two (2) or more business enterprises to constitute a single business enterprise to perform a city construction or professional design or construction services contract, or concession agreement for which purpose they combine their property, capital, efforts, skills and knowledge and in which endeavor each joint venturer is responsible for a distinct, clearly defined portion of the work of the contract or concession agreement, performs a commercially useful function, and whose share in the capital contribution, control, management responsibilities, risks and profits of the joint venture are equal to its ownership interest. Joint ventures must have an agreement in writing specifying the terms and conditions of the relationships between the joint venturers and their relationship and responsibility to the contract or concession agreement.

(27)

Manufacturer means a business enterprise that operates or maintains a factory or establishment that produces, or substantially alters on the premises the materials, supplies or equipment provided to contractors, consultants, subcontractors, subconsultants, suppliers, brokers or manufacturer's representatives on a contract, required under the contract and of the general character described by the contract specifications. The percentage of the value of the commercially useful function performed by a manufacturer on a city contract shall be counted in the same manner as for a supplier to quantify the work performed.

(28)

Manufacturer's representative means a business enterprise that sells products for one (1) or more manufacturers. A manufacturer's representative does not take legal title to or physical possession of the products that it sells, such products generally being sent directly from the manufacturer to the contractor or subcontractor purchasing such products. Only bona fide commissions earned by a manufacturer's representative in performing a commercially useful function on a contract shall be counted toward legitimate participation by an SBE on such contract as set out in this article VII.

(29)

Packager means a business enterprise that performs a commercially useful function in the packaging of goods for the city or a private owner or its contractors, consultants, manufacturers, manufacturer's representatives or suppliers but is not itself a regular dealer or a manufacturer or manufacturer's representative. A packager shall be considered as, and treated as, a broker. A packager shall be considered and treated as a broker.

(30)

Personal net worth means the net value of the assets of an individual after total liabilities are deducted. An individual's personal net worth does not include the individual's ownership interest in an applicant business enterprise or participating SBE or the individual's equity, if any, in his or her primary place of residence. An individual's personal net worth includes only his or her share of assets held individually and jointly with the individual's spouse. For the purposes of certification as an SBE or an EBE under this article VII, an individual must have a personal net worth equal to or less than the permissible personal net worth amount determined by the U.S. Department of Transportation to be applicable to its DBE programs, or as otherwise promulgated by the director by rule and regulation. This requirement shall not apply to SBEs certified under this article VII solely as concessionaires.

(31)

Private owner means a private or other non-city owner undertaking to contract for construction work or for professional design and construction services on buildings or aviation or aeronautical facilities or improvements thereto, on real property owned by the city.

(32)

Professional design and construction services means those areas of services ancillary to construction as encompassed within the city's contracting processes authorized by the Charter and ordinances of the city, including engineering, architectural, testing, construction management services and planning services related to a construction project.

(33)

Proposal means an offer to perform construction or professional design and construction services or to operate a concession pursuant to a negotiated or otherwise competitively selected city contract or concession agreement with either the city or a private owner, and whether in response to a request for qualifications, request for proposals or otherwise. The department head shall designate the final project-specific proposal, and the date of receipt for each solicitation of proposers subject to this article VII.

(34)

Proposer means a business enterprise that submits a proposal on a city construction contract or professional design and construction services contract, or for a concession agreement, that is negotiated and not competitively bid or that utilizes a competitive selection process.

(35)

Regular dealer means a business enterprise that owns, operates or maintains a store, warehouse or other establishment in which the materials, supplies, articles or equipment of the general character described by the contract specifications and required for the performance of the contract re bought and regularly sold or leased to the public in the usual course of business. To be a regular dealer, the business enterprise must be an established, regular business engaged in, as a substantial and material portion of its business, and in its own name, the purchase and sale or lease of the products in question. A regular dealer is presumed to keep such materials, supplies, articles or equipment in stock, but must in any event bear the risk of loss of such items. A regular dealer in such bulk items as steel, cement, gravel, stone, asphalt and petroleum products need not own, operate or maintain a place of business if it both owns and operates distribution equipment for the products. Any supplementation of a regular dealer's distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. Brokers, conduits, packagers, manufacturers and manufacturer's representatives shall not be regarded as regular dealers within the meaning of this term.

(36)

Small business enterprise or SBE means a business enterprise that is certified by the director under this article VII as meeting all of the requirements for certification set forth in sections 28-205 and 28-206.

(37)

Subcontractor or subconsultant means a business enterprise that either directly contracts with a contractor or consultant or directly contracts with subcontractors or subconsultants under such contractor or consultant on a city contract or concession agreement, and which business enterprise will provide services or perform work under agreements with the contractor or consultant or with other subcontractors or subconsultants under such contractor or consultant.

(38)

Supplier means a business enterprise that either directly contracts with a contractor or consultant or directly contracts with subcontractors or subconsultants under such contractor or consultant on a city contract, and which business enterprise will provide materials, supplies or equipment under agreements with the contractor or consultant, or with other subcontractors or subconsultants under such contractor or consultant. A supplier may be a regular dealer, manufacturer, manufacturer's representative or broker. On city contracts of less than five million dollars ($5,000,000.00) at the time of bid opening or proposal selection, one hundred (100) percent of the value of the commercially useful function performed by an SBE supplier on such contract shall be counted toward compliance with this article VII. On city contracts of five million dollars ($5,000,000.00) or more at the time of bid opening or proposal selection, sixty (60) percent of the value of the commercially useful function performed by an SBE supplier on such contract shall be counted toward compliance with this article VII.

(Ord. No. 85-14, § 3, 2-18-14)