§ 324-27. Counting MBE and WBE Participation.

A bidder or respondent to an RFP or RFQ may only be credited with MBE or WBE participation on the contract as follows:

(a)

A business that is certified both as an MBE and as a WBE ("M/WBE") may be counted either toward the MBE contract participation goal or toward the WBE contract participation goal, but not toward both. The participation of an M/WBE also may not be allocated partially to the MBE contract participation goal and partially to the WBE contract participation goal.

(b)

A certified MBE or WBE that has been awarded a contract as a prime contractor may count 100% of the dollar value of the work it intends to perform with its own forces toward the applicable contract participation goal.

(c)

In the absence of a written approval by the director of a substitution of a non-certified MBE or WBE as provided in Section 324-23 of this chapter, only businesses that were certified by the director as an MBE or WBE prior to bid opening or the submission of a response to an RFP or RFQ may be counted toward the applicable contract participation goal.

(d)

Only payments to certified MBEs or WBEs that perform a commercially useful function may be counted toward the applicable contract participation goal.

(1)

To determine whether a certified MBE or WBE is performing a commercially useful function, the director must evaluate:

(A)

The amount of work subcontracted;

(B)

Industry practices;

(C)

Whether the amount the MBE or WBE is to be paid under the contract is commensurate with the work it is actually performing and with the MBE or WBE credit claimed for its performance of the work; and

(D)

Any other factors deemed by the director to be relevant to the determination.

(2)

If the director initially determines that an MBE or WBE is not performing a commercially useful function, the director shall give written notice to the MBE or WBE, and the MBE or WBE may provide written documentation to the director within seven days that evidences that it is or will be performing a commercially useful function.

(3)

The decision of the director after submission of such additional evidence by the MBE or WBE, or within seven days of written notice of the initial determination if no additional evidence is submitted, shall be final and conclusive.

(e)

Only that portion of the payment to a joint venture that is equal to the percentage of ownership and contract performance of the certified MBE or WBE participant in the joint venture may be counted toward the applicable contract participation goal.

(f)

The entire expenditure to a certified MBE or WBE manufacturer or to a certified MBE or WBE supplier that also manufactures the goods supplied may be counted toward the applicable MBE contract participation goal or WBE contract participation goal.

(g)

Twenty-five percent of the payment to a certified MBE or WBE supplier that is a wholesaler warehousing the goods supplied may be counted toward the applicable contract participation goal.

(h)

The fees or commissions charged by a certified MBE or WBE insurance company or travel agent may be counted toward the applicable contract participation, provided that the fee is reasonable and not excessive as compared with fees or commissions customarily allowed for similar services.

(i)

A certified MBE or WBE that intends to subcontract more than 10% of the dollar amount of the services to be performed under a subcontract with the bidder or respondent to an RFP or RFQ may not be counted toward the applicable MBE contract participation goal or WBE contract participation goal. This exclusion does not apply to an MBE's or a WBE's expenditures for the purchase of materials, equipment or supplies as an incident to the performance of services under its subcontract with the bidder or respondent to an RFP or RFQ.

(j)

A certified MBE or WBE may not be counted toward the applicable contract participation goal if the bidder or respondent to an RFP or RFQ has a financial interest in, has an interest in the ownership or control of, or is significantly involved in the operation of the certified MBE or WBE.

(Ordained by Ord. No. 308-2015, § 1, eff. Jan. 1, 2016)