§ 28-212. Defined selection pool contracts for construction, reconstruction and remodeling—Identification of work scope of performing SBE and of other participating SBEs.

(a)

At the time of bid opening, or date of final project-specific proposal in the case of a competitive selection process, the bidder or proposer shall provide to the city or private owner a list of all SBEs that are being utilized on the contract whether as a self-performing bidder or proposer or as subcontractors, suppliers, manufacturers, manufacturer's representatives, brokers or members of a joint venture. The list shall specify:

(1)

The name and contact name for each SBE;

(2)

The dollar value and description of the commercially useful function to be performed by the SBE, consistent with subsections (c) and (d). In the case of utilization of a supplier, manufacturer, manufacturer's representative, or broker, the appropriate percentage of dollar value attributable to such SBE as a commercially useful function shall be calculated with all underlying data supplied;

(3)

The percentage of the value of the commercially useful function to be performed by the SBE, consistent with subsections (c) and (d), as compared to the total contract amount;

(4)

An adequate statement from the bidder or proposer that the dollar amount of work to be performed by such SBE on the contract, other than that self-performed by the bidder or proposer, was furnished to the bidder or proposer and agreed upon prior to bid opening or date of final project-specific proposal in the case of a competitive selection process; and

(5)

An adequate statement from the bidder or proposer that it understands that a letter of intent, including, but not limited to, values provided by self-performing bidders or proposers, joint venturers, subcontractors, suppliers, manufacturers, manufacturer's representatives and brokers, expressed in dollar values and as a percentage of the overall work, must be submitted to the director for each SBE listed, including a self-performing bidder or proposer, within three (3) business days after bids are opened by the city or by the date of final project-specific proposal in the case of a competitive selection process, or bid selection made by a private owner.

(b)

Only that level of SBE utilization demonstrated in accordance with this section at the time of such bid opening, date of final project-specific proposal in the case of a competitive selection process or private selection may be counted in satisfaction of the requirements of this article VII. Bidders or proposers must submit an executed letter of intent for each SBE listed by the bidder or proposer, including a self-performing bidder or proposer, within three (3) business days after bids are opened, final project-specific proposals are received, in the case of a competitive selection process, or bid selection is made. Failure to do so will render the bid or proposal nonresponsive.

(c)

All SBE contractors, subcontractors, joint venturers, suppliers, manufacturers, manufacturer's representatives or brokers listed in a bid or proposal must actually perform a commercially useful function in the work of a contract within the area(s) for which they are certified, and must not function as a conduit. Consistent with industry or professional practice, and as permitted by rules and regulations adopted by the director, SBEs may enter into subcontracts, including subcontracts with non-SBEs. In no case, however, shall an SBE act as a conduit, nor shall the participation of an SBE count toward satisfaction of the requirements of this article VII to the extent it fails to perform a commercially useful function.

(d)

All expenditures for materials, supplies and equipment obtained from an SBE manufacturer, manufacturer's representative or supplier shall count toward SBE self-performance or utilization as specified in subsection 28-204(38). Expenditures for materials, supplies and equipment paid to SBEs that are not manufacturers, manufacturer's representatives or suppliers may count toward compliance with the requirements of this article VII only to the extent of fees or commissions charged for providing a bona fide service, such as professional, technical, consultant or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials or supplies required for performance of the contract, provided that the fee or commission is determined by the director to be reasonable and not excessive as compared with fees customarily allowed for similar services.

(e)

Any agreement between a bidder or proposer and an SBE in which the bidder or proposer requires that the SBE not provide subcontracting quotations to other bidders or proposers is prohibited and shall render a bidder's bid or proposer's proposal nonresponsive.

(Ord. No. 85-14, § 3, 2-18-14)