§ 17-321. Contract and subcontract goals.

(a)

The following initial goals are hereby established with respect to the amount of participation each year by minority-owned and women-owned businesses in the indicated types of county contracts:

(1)

Construction. The county hereby establishes a minimum annual contract dollar participation goal of twenty-five (25) percent of contract dollars awarded to minority/women business enterprises for participation in the construction area. The twenty-five (25) percent goal applies to all construction-related procurement.

a.

Fifty (50) percent of the total dollar value of supplies furnished by certified minority/women business enterprises will be counted toward the goals established for the project provided the supplier is not a manufacturer. If the minority/women business enterprise supplier also manufactured the goods, one hundred (100) percent of those dollars will be allotted toward the minority/women business enterprise goals.

b.

If a minority/women business enterprise prime contractor certifies that it will self-perform fifty-one (51) percent or more of the project with its own forces, it will not be required to comply with the minority/women business enterprise subcontracting goals. If the minority/women business enterprise prime contractor does not certify that it will self-perform at least fifty-one (51) percent of the project, then the minority/women business enterprise prime contractor must comply with the twenty-five (25) percent annual minority/women business enterprise subcontracting goal.

c.

Contract awards will count towards minority/women business enterprise subcontract participation only for subcontractors who are certified in a specific line of work or business for which a defined scope of work is sought at the time of bid or proposal opening. Only these minority/women business enterprise firms certified or recognized by the county will count towards the subcontracting goals.

d.

A prime contractor is not required to subcontract out work that it has historically and consistently performed with its own work force. For that portion that the prime contractor does not historically and consistently perform, the prime shall make a good-faith effort as defined herein, to utilize all available minority/women business enterprise. However, if after the award of bid, the prime contractor chooses to subcontract such work to a non-minority/women business enterprise firm, the prime contractor may face penalties pursuant to section 17-326.

e.

A business acting or that will act as broker, front, conduit or pass-through shall not be certified or recertified as a minority/women business enterprise, unless in the case of a broker the brokering service reflects normal industry practice and provides or will provide a commercially useful function. The compliance officer may revoke the certification of any minority/women business enterprise that is determined to be acting under these arrangements in connection with one (1) or more county procurement contracts, and contractors and subcontractors who create or knowingly participate in such arrangements shall be subject to the penalties enumerated in this division.

(2)

Professional services. The county hereby establishes a minimum annual contract dollar participation goal of twenty-seven (27) percent minority/women business enterprise participation in professional services.

(3)

Goods. The county hereby establishes a minimum annual contract dollar participation goal of ten (10) percent minority/women business enterprise participation in the procurement of goods.

The goals set forth shall be examined annually and shall sunset as provided in section 17-334, subsequent to the board of county commissioners review and determination as to whether discrimination against minority/women business enterprises continues in the relevant markets.

(4)

Services. The county hereby establishes a minimum annual contract dollar participation goal of twenty-four (24) percent minority/women business enterprise participation in the procurement of services.

(b)

The relevant market for which the county will recognize and calculate minority/women business enterprise participation will be as follows:

(1)

Construction - Orlando Metropolitan Statistical Area.

(2)

Professional services - Orlando Metropolitan Statistical Area.

(3)

Goods - Orlando Metropolitan Statistical Area.

(4)

Services - Orlando Metropolitan Statistical Area.

(c)

In addition to the other measures provided herein, the following measures may be taken in order to achieve the goals of minority/women business enterprise participation:

(1)

Each contract, except sole source, emergency purchases and other contracts for which goals have been waived shall include a requirement that the contractor commit to the expenditure of at least the required minority/women business enterprise percentage of the dollar value of the contract. This requirement may be waived or revised if it is determined that a different percentage commitment should apply based on the availability of minority/women business enterprises in the applicable industry, service or commodity code. The contractor shall also furnish to the compliance officer written documentation evidencing actual dollars paid to each subcontractor/supplier listed and/or utilized by the contractor. This will include, but not be limited to: copies of canceled checks, approved invoices, and signed, sworn affidavits certifying the accuracy of payment reports, so that the county may determine actual participation achieved by the contractor prior to issuance of final payment. However, under no circumstances shall the county be responsible for direct payment to any subcontractor.

(2)

During any fiscal year in which bids are sought by the county for a contract to provide goods, professional services, services or construction, the county may so prescribe bidding requirements as to include bid preference and initiatives for certified minority businesses and/or women businesses.

(3)

The county may negotiate a reasonable price directly with a certified minority/women business enterprise provided the procurement is less than the mandatory bid amount.

(4)

The county may recognize and create initiatives for the development and maintenance of joint ventures between majority and minority/women business enterprises.

(d)

If in the bidding for a construction contract the established level and percentage subcontract goals are not achieved by the low bidder, and it is deemed that a good-faith effort for compliance has not been shown by the low bidder, then the bid shall be rejected by the purchasing manager as nonresponsive but only if the next lowest responsive bid does not exceed the low bid by more than:

(1)

Eight (8) percent on contract awards up to one hundred thousand dollars ($100,000.00);

(2)

Seven (7) percent on contract awards from one hundred thousand dollars ($100,000.00) to five hundred thousand dollars ($500,000.00);

(3)

Six (6) percent on contract awards from five hundred thousand dollars and one cent ($500,000.01) to seven hundred fifty thousand dollars ($750,000.00);

(4)

Five (5) percent on contract awards from seven hundred fifty thousand dollars and one cent ($750,000.01) to two million dollars ($2,000,000.00);

(5)

Four (4) percent on contract awards from two million dollars and one cent ($2,000,000.01) to five million dollars ($5,000,000.00); or

(6)

Three (3) percent on contract awards over five million dollars and one cent ($5,000,000.01).

Notwithstanding the foregoing provisions, if the next low bid is responsive only because of the bidder having made good-faith effort (not because of having met the goals set forth in subsection (a)), the board may award the contract to the next low bidder only if the value of its minority/women business enterprise participation will be equal to or greater than that of the low bidder.

(e)

At any time prior to the award of contract or a purchase of goods and supplies, the compliance officer may grant a partial or complete waiver of minority/women business enterprise requirements in the event of a sole source, unavailability or an emergency when a waiver is necessary to avoid detriment to the public health, safety or welfare of the citizens of the county or the general public. If the compliance officer grants such a waiver, the compliance officer must document the reasons for granting the waiver.

(f)

Minority/women business enterprise utilization waiver may be granted by the compliance officer if the apparent successful bidder/proposer has demonstrated that it has exercised good-faith efforts (contracts) in soliciting minority/women business enterprise participation, but has been unable to achieve the established goal, and a determination has been made that the award to the apparent successful bidder/proposer is in the best interest of the county.

(g)

In addition to any other requirements set forth in this division, contractors who are awarded contracts by the county shall submit a copy of their executed subcontract with each minority/women business enterprise listed in their bid/proposal prior to execution of a contract with the county.

(h)

After consultation with the county department or division requesting or affected by the particular procurement, the compliance officer may specify a goal or goals for a pending county procurement that are lower than the goals set forth in subsection (a), but only when the aggregate estimated contract payments expected in connection with the procurement matter will exceed one hundred thousand dollars ($100,000.00) and only if the lower goal or goals are based on the following factors:

(1)

The nature and type of the goods, services, or construction to be delivered under the pending contract;

(2)

The extent to which the goods, services, or construction is susceptible to being delivered through subcontractors and/or subconsultants;

(3)

The availability of minority/women business enterprises ready, willing, and able to deliver the goods, services, or construction, whether through the prime contract or through subcontracts thereunder;

(4)

The county's past experience in meeting its minority/women business enterprise goals in similar types of procurement matters and, when not met, the reasons therefor;

(5)

Special circumstances of the project (if any), such as schedule constraints, construction requirements, requirements of related state or federal grant funding, or other related special circumstances;

(6)

The extent, if any, to which the county may have experienced an excess in the amount that minority/women business enterprises have been used, when compared to their availability, in similar types of procurement matters during the previous thirty-six (36) months; and

(7)

Such other factors as the compliance officer may determine to be reasonably germane to the pertinent procurement and to the need or desirability to provide goals, incentives, and opportunities for participation therein by minority/women business enterprises.

(i)

The compliance officer is authorized and directed to monitor the availability and utilization of minority/women business enterprises in county procurement and to adjust the county's procurement practices from time to time as follows:

(1)

The compliance officer shall monitor the availability and utilization of minority/women business enterprises and shall report to the county administrator no later than thirty (30) days after the end of each calendar quarter regarding the extent to which minority/women business enterprises are being utilized, underutilized, or overutilized, both in county procurement and, to the extent data is available, in procurement in the public and private sectors of the Orlando Metropolitan Statistical Area.

(2)

If at any time the compliance officer determines, based on competent data and analysis, that minority-owned business enterprises or women-owned business enterprises, or both, are being overutilized in any part of county procurement matters, and if the compliance officer determines that a reduction or elimination of some or all of the goals set forth in subsection (a) (as they may then have been adjusted by the board of county commissioners) will not result in a material decline in the utilization of minority-owned or women-owned business enterprises (as the case may be), the compliance officer may adjust the procurement practices authorized or required under this division as he determines to be necessary, appropriate, or useful to eliminate the overutilization. He shall notify the board of county commissioners, the county administrator, the chief of purchasing and contracts, and other county departments and divisions as appropriate and useful, of the adjustments to be made, and thereafter such adjustments shall supersede the goals and other policies and requirements set forth in this division.

(3)

The compliance officer shall deliver a report to the county administrator setting forth data, analysis, and conclusions on the extent to which minority/women business enterprises have been underutilized, overutilized, or proportionately utilized in county procurement of goods, construction subcontracting, and professional-services subconsulting. If the data, analysis, and conclusions of the report demonstrate that in one (1) or more of those types of procurement the county has succeeded in using minority/women business enterprises in amounts proportionate to their availability in the relevant market, or if the report demonstrates that minority/women business enterprises have been overutilized when compared to their availability for those types of procurement, the county administrator shall notify the board of county commissioners of the situation and shall direct the compliance officer, the chief of purchasing and contracts, and other county departments and divisions, as necessary or useful, to discontinue immediately the imposition of the goals in subsection (a) in the type or types of procurement where the report demonstrates that minority/women business enterprises are being overutilized or proportionately utilized. Thereafter, the county administrator shall ensure that the goals are not reimposed in any such procurement proceedings unless and until he or she receives data, analysis and conclusions that, during a subsequent period of no less than six (6) consecutive calendar months, the county's procurement processes have again resulted in a material underutilization of minority/women business enterprises in those types of county procurement.

(Ord. No. 94-02, § 5, 1-11-94; Ord. No. 98-25, § 3, 10-6-98; Ord. No. 2002-01, § 5, 1-08-02; Ord. No. 2009-21 , § 3, 8-25-09)