§ 323-17. Mandatory Subcontracting to SLBEs/ELBEs.

(a)

The director may, on a contract-by-contract basis, require that a predetermined percentage of a specific contract, up to 30%, be subcontracted to certified SLBEs or ELBEs.

(b)

Each bidder must include with its bid a subcontractor utilization plan (Form 2003) in which the bidder commits to utilize certified SLBEs or ELBEs in a percentage that equals or exceeds the applicable contract goals unless it submits a request for waiver as set forth in subsection (c) of this section. Any bid that does not include either a completed Form 2003 or a request for waiver shall be deemed non-responsive.

(1)

Each bidder is responsible for verifying that all SLBEs and ELBEs to be used as subcontractors have been certified by the department.

(2)

If the prime contractor is a certified SLBE, it shall be entitled to count the dollar value of the work performed by its own labor force toward satisfaction of the mandatory SLBE subcontracting percentage for the contract.

(3)

An SLBE prime contractor may not subcontract more than twenty-five percent of the total contract value to a non-SLBE.

(c)

A bidder may submit with its bid a request for a full or partial waiver by the director of the mandatory subcontracting percentage for good cause by submitting evidence of SLBE or ELBE unavailability along with adequate documentation of good faith efforts, as defined in the program rules and regulations, to obtain SLBE or ELBE participation in the form required by the director. If the bidder requests a partial waiver, it shall also be required to submit a completed subcontractor utilization plan (Form 2003) as provided in subsection (b) of this section.

(1)

Requests for waiver will be evaluated by the director on a case-by-case basis; and

(2)

The determination of whether a waiver will be granted shall be based on the availability of certified SLBEs or ELBEs who can provide a commercially useful function under the circumstances.

(d)

In the absence of a waiver, the failure of a contractor to maintain the SLBE or ELBE participation percentage established for the contract shall be grounds for termination of the contract in addition to any other remedies available under the terms of the contract or under the law.

(e)

It shall be a material breach of contract if a contractor fails to notify the director and fails to obtain prior written approval from the director of any of the following:

(1)

Reduction in SLBE or ELBE subcontractor participation;

(2)

Termination of an SLBE or ELBE subcontract; or

(3)

Substitution of a new SLBE or ELBE for an SLBE or ELBE listed on the subcontractor utilization plan (Form 2003).

(Ordained by Ord. No. 307-2015, § 4, eff. Jan. 1, 2016)