§ 28-218. Defined selection pool contracts for professional design and construction services—Identification of work scope of performing SBE and of other participating SBEs.

(a)

At the time of the final project-specific proposal submitted to and authorized by the city or a private owner the proposer shall provide to the city or private owner a list of all SBEs that are being utilized on the contract or concession agreement whether as a self-performing proposer or as subconsultants, suppliers, manufacturers, manufacturer's representatives, brokers or members of a joint venture. Unless otherwise specified in a request for qualifications, request for proposal or other proposal solicitation, in the event that a proposal is requested for the provision of on-call services for a period of time, with no delineation of the dollar amount of specific on-call projects, the proposer need list only the anticipated percentage participation of SBEs rather than specific dollar amounts. The list shall specify:

(1)

The name and contact name for each SBE;

(2)

The description and percentage of the value of the commercially useful function to be performed by the SBE or the percentage of the revenues expected to be generated by the concession agreement, consistent with subsections (b) and (c), as compared to the total contract amount or the total revenues expected to be generated by the concession agreement. 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. If the proposer provides a dollar fee amount, then both the dollar value and percentage must be listed in the proposal.

(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 or concession agreement amount;

(4)

An adequate statement from the proposer that the dollar amount of work and/or the percentage of the work to be performed by such SBE on the contract or concession agreement, other than that self-performed by the proposer, was furnished to the proposer and agreed upon prior to the time of submission of the final project-specific proposal submitted to and authorized by the city or a private owner; and

(5)

An adequate statement from the proposer that it understands that a letter of intent, including, but not limited to, values provided by self-performing proposers, joint venturers, subconsultants, 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 proposer, at the time of submission of the final project specific proposal submitted to and authorized by the city or a private owner.

(b)

Only that level of SBE utilization demonstrated in accordance with this section at the time of such date of final project-specific proposal submitted and authorized by the city or a private owner may be counted in satisfaction of the requirements of this article VII. Proposers must submit an executed letter of intent for each SBE listed by the proposer, including a self-performing proposer, at the time of submission of the final project-specific proposal submitted to and authorized by the city or a private owner. Failure to do so will render the proposal nonresponsive.

(c)

All SBE consultants, subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives or brokers listed in a proposal must actually perform a commercially useful function in the work of a contract or the operation of a concession agreement 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 or concession agreement, 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 proposer and an SBE in which the proposer requires that the SBE not provide subconsulting quotations to other proposers is prohibited and shall render a proposer's proposal nonresponsive.

(Ord. No. 85-14, § 3, 2-18-14)