§ 17-319. Definitions.

When used in this division, the following terms are to be defined and construed as follows:

American means a person who is a citizen or a permanent resident of the United States.

Bid preference program means a program whereby a selected vendor's bid is adjusted by the county for evaluation purposes.

Bid means a formal written offer by a vendor to the county to furnish specific goods and/or services at a specified price or prices in response to an invitation for bid or a multistep bidding procedure.

Board means the board of county commissioners of Orange County, Florida.

Broker means a business which purchases goods or services from another business or businesses for the sole purpose of resale to the county, or to a contractor doing business with the county, or to any subcontractor or sub-subcontractor doing work under a county contract.

Business net worth means total business assets minus total business liabilities. If the applicant owns more than one (1) business, all of the businesses are included in the calculation.

Certified or certification means official recognition of the minority/women business enterprise status of a business by Orange County.

Certified graduate M/WBE firm means a firm certified to participate as a graduate firm. Such firms will only be counted as M/WBE firms on projects that meet the criteria set forth in section 17-332 of this Code.

Compliance officer means the business development department manager or his or her designee.

Conduit means the minority/women business enterprise acting as a subcontractor to a contractor under a contract with the county, when the minority/women business enterprise does not perform the work under subcontract, and instead the work under the subcontract is performed by a non-minority/women business enterprise.

Construction means the process, usually requiring the professional services of an architect and/or engineer, of building, altering, repairing, improving or demolishing any structure or building, or other improvement of any kind to any real property.

Contractor means any person having a contract with the board of county commissioners.

Controlled means, for the purposes of determining whether a business is a minority-owned business enterprise or women-owned business enterprise, that the minority(ies), or the women, as the context requires, shall:

(1)

Possess legal authority and power to manage business assets, goodwill and daily operations of the business; and

(2)

Actively and continuously exercise such authority and power in determining the policies and directing the operations of the business.

County mayor means the county mayor, who is elected county-wide as per the County Charter, or his or her designee.

Credit program means the official recognition and reward to a contractor for minority/women business enterprise utilization, employment, employment training and minority/women business enterprise training on county projects; and for utilizing minority/women business enterprises on other governmental jurisdictions, and private sector projects wherein the contractor's bid or proposal can be awarded bonus points or other forms of credit or advantage in the evaluation process.

Debarment means the exclusion for cause of a vendor or contractor from bidding and/or receiving a contract to do business with the county.

Disparity study means the "Orange County Interlocal Disparity Study," dated February 24, 1993, and any subsequent updates of the same.

Emergency or emergency purchases means a procurement made in response to a requirement when the delay incident to complying with all government rules, regulations and/or procedures would be detrimental to the health, safety and welfare of the county and/or its citizens.

Front means a business which purports to be a minority/women business enterprise, but which is actually owned and/or controlled in a manner which is inconsistent with the requirements of certification.

Goal means a targeted percentage level of minority/women business enterprise participation aspired to by the county. Participation goals shall be established for the utilization of minority-owned and women-owned businesses unless prohibited by federal or state funding agencies for specific contracts.

Good faith effort (contracts) means the efforts undertaken by a contractor to obtain minority/women-owned business enterprise participation in a contract, and shall include all the following actions:

(1)

Written notice to minority/women business enterprises that provides the type of work that the contractor intends to subcontract. The notice shall be by e-mail or fax no fewer than seven (7) calendar days prior to bid or proposal opening. All e-mails shall include the legal name of the firm. The notice shall advise:

a.

That the minority/women business enterprise's interest in the contract is being solicited;

b.

The specific work the contractor intends to subcontract;

c.

How to obtain information about and review of the contract plans and specifications;

d.

Information on bonding and/or other pertinent insurance requirements;

e.

The deadline for bid or proposal submission to the prime contractor and the bid or proposal opening date; and

f.

That the prime contractor will provide the minority/women business enterprise no less than twenty-four (24) hours' notice of all addenda.

(2)

The prime contractor shall list the divisions of contract work not subcontracted and provide an explanation why the M/WBE goals were not achieved.

(3)

Follow-up of initial submittals of interest by contacting minority/business enterprises and document using a contract log, which shall include the firm's name address, contact information (e-mail, telephone and/or fax numbers), scope of work requested, the date, name of person making the effort, denote if M/WBE will bid, time quote received and notes denoting if plans and specs were sent. Each bidder shall use the standardized contract log.

(4)

Where a non-minority/non-woman contractor is listed for work for which a minority/women business enterprise availability exists, the prime contractor shall submit all quotations received from minority/women business enterprises and the listed contractor within twenty-four (24) hours, if one (1) of the three (3) apparent low bidders. The prime contractor shall provide an explanation as to why the minority/women quotations were not accepted. Receipt of a lower quotation from a non-minority/non-women business enterprise prior to or at the time of bid opening will not in itself excuse a contractor's failure to meet contract goals. However, a contractor's good faith effort obligation does not require a contractor to accept a quotation from a minority/women business enterprise which is an unreasonable price. For the purpose of this subsection, "unreasonable price" means a price above (or below) competitive levels which cannot be attributed to the minority/women business enterprise's attempt to cover costs inflated by the present effect of discrimination.

(5)

Contractor shall contact the business development division staff as a resource to obtain M/WBE participation.

Good faith effort (employment) means an honest attempt to meet the county's minority and women employment goals. Factors to be considered in determining good faith effort (employment) are as follows:

(1)

The equal employment opportunity work force schedule complete and in the bid package;

(2)

Where the level of employees does not meet the county minority and women employment goals, the contractor has set forth its plans to meet those goals;

(3)

Nonworking training hours of minority/women apprentices and trainees can be counted toward the goals, if such minority/women apprentices or trainees are employed by the contractor during the training period and the contractor has made a commitment to employ the minority/women apprentices or trainees at the completion of their training, subject to the availability of employment opportunities;

(4)

A diversification plan that outlines specific actions to ensure equal employment opportunity to include, but not be limited to: a work environment free from harassment, intimidation or coercion; a current list of minority and women recruitment sources and community sources and a provision for written notification to these sources when employment opportunities are available; a current file of applicants and the action taken with respect to each applicant; written notification when the union referral process has impeded the contractor's effort to meet its obligation; on the job training opportunities and/or training programs, within the contractor's firm, for the area which expressly includes minorities and women;

(5)

The contractor has provided notice of these training programs and employment opportunities to the recruitment sources and the county minority/women business enterprise department;

(6)

The contractor disseminates the equal employment opportunity policy and requests assistance in meeting these equal employment opportunity obligations by including it in any policy manual and collective bargaining agreement, by publicizing it in the company newspaper, annual report, by specific review of the policy with all management personnel and with all minority and female employees and by posting the equal employment opportunity policy on bulletin boards accessible to all employees;

(7)

The contractor's recruitment efforts, both oral and written, have been directed to minority and female organizations, schools and to its own minority and female employees;

(8)

The contractor has designated a responsible official to monitor all employment related activity to ensure that the equal employment opportunity policy is being carried out.

Good faith effort credit means that if a contractor fails to meet requirements (1) through (4) of the above-mentioned good faith effort (contracts), then the contractor will be permitted to substitute one (1) of the following with documentation showing that:

(1)

The Disney Entrepreneur Center (DEC) was used to host a workshop that informed M/WBE firms how to better prepare for subcontracting opportunities;

(2)

The contractor has participated in Orange County Business Development Division's sponsored "How to do Business" workshop;

(3)

The contractor has sponsored a match-maker event with certified M/WBE firms. Orange County Business Development Division will determine the usage of this substitution, alone with the appropriate time frame for utilizing this credit.

Goods means any tangible personal property as distinct from services or real property.

Joint venture means an association of two (2) or more businesses:

(1)

That is contractually formed to carry out a single business project or contract or enterprise for profit;

(2)

For which purpose the businesses combine their expertise, property, capital, efforts, skills, and knowledge and share contractual obligations, responsibilities, liabilities and profits;

(3)

That is approved by the compliance officer; and

(4)

One (1) of the businesses of which must be a certified minority/women-owned business enterprise.

(5)

Capable of obtaining bonding/insurance under the joint venture firm's name as required by the county.

Minority means:

(1)

"African Americans," which includes persons having origins in any of the black racial groups of Africa;

(2)

"Hispanic Americans," which includes persons of Spanish or Portuguese culture with origins in Mexico, Puerto Rico, Cuba, Central or South America or the Caribbean Islands;

(3)

"Native Americans," which includes persons residing in the United States or its territories, who are descendants of any of the Indian tribes with origins in the North and South American continents and other islands or lands to include the countries of the United States, Canada and Mexico;

(4)

"Asian Americans," which includes persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands.

a.

"Far East" is defined to include China, Hong Kong, Macao, Japan, Korea, Taiwan and the Philippines.

b.

"Southeast Asia" is defined to include Burma, Kampuchea, Laos, Thailand, Vietnam, Malaysia, Brunei, Borneo, Indonesia and Cambodia.

c.

"Pacific Islands" is defined to include Micronesia, Polynesia, Melanesia and the area consisting of the Hawaiian Islands prior to 1778.

d.

"Indian Subcontinent" is defined to include India, Bangladesh, Sikkim, Nepal, Pakistan and Bhutan.

Minority-owned business enterprise means a business firm certified by the county:

(1)

That is at least fifty-one (51) percent owned by minorities or, in the case of a publicly-owned business, at least fifty-one (51) percent of the voting stock of which is owned by minorities;

(2)

For which the minority ownership exercises actual day-to-day management and control of the business;

(3)

Which is located in the relevant market area;

(4)

That is legally organized;

(5)

That demonstrates the capability (i.e. sufficient employees, equipment, facilities, supplies, etc.) to perform a specific line of business;

(6)

That operates separately from a non-minority or woman-owned firm;

(7)

That provides a commercially useful business function according to customs and practices of the industry; and

(8)

That has a net worth which is less than two million three hundred thousand dollars ($2,300,000.00) at the time of application to become certified.

The county will not certify any business as a minority/women-owned business enterprise if there is substantial evidence the business was established to circumvent the net worth limitations set forth in section 17-332.

Minority/women business enterprise means a business that is either a minority-owned business enterprise or a women-owned business enterprise, or both.

Minority/women business enterprise advisory committee means the minority/women business enterprise advisory committee, appointed by the board of county commissioners.

Minority/women business enterprise directory means a printed compilation of certified minority/women business enterprises which is retained and published by the minority/women business enterprise department and made available to contractor(s), vendor(s) and the public for use in identifying contractors, service providers, material suppliers, etc.

Orlando Metropolitan Statistical Area means Lake, Orange, Osceola and Seminole Counties.

Owned means having all the customary incidents of ownership, including the right of disposition, and the right or obligation to share in all risks and profits commensurate with the degree of ownership interest.

Pass-through means buying or obtaining goods or services from a non-minority/women business enterprise and reselling or transferring those goods or services to the county, to county contractors, or to other persons doing business with the county for the purpose of obtaining any advantage or benefit conferred under this division, without performing a commercially useful function.

Procurement means buying, purchasing, renting, leasing or otherwise acquiring any goods and/or services for public purposes in accordance with the law, rules, regulations and procedures intended to provide for the economic expenditure of public funds. It includes, but is not limited to, all functions which pertain to the obtaining of any supplies, materials, equipment and/or services including construction projects and capital improvement projects, as defined herein, required by any division, department or agency of county government regardless of the source of funds or for which payment is made from county funds. For the purposes of this division, it excludes those items set forth in Orange County Code section 17-286.

Professional services has the same meaning as is provided for that term by F.S. § 287.055(2), as that subsection may from time to time be amended or replaced.

Relevant market means the geographical areas which the county will target to do business with minority/women business enterprises in order to remedy the past and present day effect of discrimination.

Services means the furnishing primarily of labor, time and/or effort by professionals or contractors, wherein the submission of goods or other specific end products other than reports, studies, plans, advisories, contractual documents or other documents relating to the required performance is incidental or secondary. This term shall not include employment agreements or collective bargaining agreements.

Sole source means the only existing source of the only item which meets the needs of the using department as determined by a reasonably thorough analysis of the marketplace.

Suspension means temporary debarment for a period not to exceed two (2) years.

Women-owned business enterprise means a business firm certified by the county:

(1)

That is at least fifty-one (51) percent owned by a woman or women or, in the case of a publicly owned business, at least fifty-one (51) percent of the voting stock is owned by American women;

(2)

For which the women ownership exercises actual day-to-day management and control of the business;

(3)

Which is located in the relevant market area;

(4)

That is legally organized;

(5)

That demonstrates the capability (i.e. sufficient employees, equipment, facilities, supplies, etc.) to perform a specific line of business;

(6)

That operates separately from a non-minority or woman-owned firm;

(7)

That provides a commercially useful business function according to customs and practices of the industry; and

(8)

That has a net worth which is less than two million three hundred thousand dollars ($2,300,000.00) at the time of application to become certified.

(Ord. No. 94-02, § 3, 1-11-94; Ord. No. 98-25, § 2, 10-6-98; Ord. No. 2002-01, § 3, 1-08-02; Ord. No. 2009-21 , § 3, 8-25-09)