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HomeMy WebLinkAboutMWBE OrdinanceTHIRD (3RD) SUBSTITUTE BILL NO. 82-21 ORDINANCE NO. 10761-21 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, REPEALING AND REPLACING CURRENT CHAPTER 14.5 OF THE SOUTH BEND MUNICIPAL CODE TO ADDRESS INCLUSIVE MINORITY AND WOMEN BUSINESS ENTERPRISE DEVELOPMENT PROGRAMS STATEMENT OF PURPOSE AND INTENT Consistent with the intent of Ordinance 10693-19, the City of South Bend (the “City”) remains committed to reducing barriers to full and fair opportunities on City contracts for minority and women owned firms, including adopting mechanisms to capture and quantify minority and women business enterprise utilization in City contracting and procurement, developing opportunities for small local minority and women owned firms to participate in competing for City business, and creating a thriving and inclusive economic ecosystem. As a tool for discerning the City’s challenges and opportunities in this vein, in 2018, the City commissioned the City’s first Minority and Women Business Enterprise Disparity Study ("Study"). Colette Holt & Associates (“CHA”) was retained by the City to perform a study to determine its utilization of Minority-and-Women-Owned Business Enterprises (collectively " MWBEs" ); the availability of MWBEs in its market area; any disparities between its utilization and MWBE availability; and to evaluate whether the use of race- conscious measures is supported by the results of this analysis. In 2020, CHA submitted a revised version of the Study (the “Revised Study”) to correct errors CHA committed in the Study that supported the adoption of Ordinance 10693-19. Accordingly, based on the City’s ongoing commitment to the objectives stated in this Ordinance and informed by the City’s now-improved understanding of the specific time period examined by the Study and the Revised Study, the City is now positioned to develop and implement the most appropriate and effective measures – and to continue those efforts commenced following the adoption of Ordinance 10693-19 – to serve the objectives of this Ordinance. NOW, THEREFORE, BE IT ORDAINED by the Common Council of South Bend, Indiana, as follows: SECTION I. The current version of Chapter 14.5 of the South Bend Municipal Code is repealed and replaced to read in its entirety as follows: CHAPTER 14.5 INCLUSIVE PROCUREMENT AND CONTRACTING WITHIN THE CITY Sec. 14.5-1. Legislative Intent The following regulations are enacted to promote equal opportunity for minority and women-owned businesses, including small local businesses, and to encourage utilization of such businesses in City contracting and procurement. It is the City's policy to: a) Ensure nondiscrimination in the award and administration of City contracts and take affirmative steps to address past discrimination as allowed under City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); b) Create a level playing field on which underutilized minority and women business enterprises can compete fairly for City contracts; c) Ensure that only firms that fully meet eligibility standards are permitted to participate as underutilized minority and women business enterprises; d) Help remove barriers to the participation of underutilized minority and women business enterprises in City contracts; e) Assist the development of minority and women owned businesses and facilitate the growth of business infrastructure to allow firms to compete successfully in the City's Marketplace outside any targeted minority and women business enterprise Program; and f) Ensure that the Minority and Women Business Enterprise Program is administered in accordance with applicable law; and g) Strive to increase both the availability and utilization of minority and women-owned businesses. Sec. 14.5-2. Definitions As used in this Chapter, the following terms shall have the following meanings: a) City means the City of South Bend, Indiana. b) City's geographic marketplace means the geographic area as defined by the City’s most current MWBE Disparity Study that now includes all counties in the state of Indiana and Berrien County, Michigan. c) Contract means any procurement contract identified by the Program Plan as subject to this Chapter. d) Contractor means any person, partnership, corporation, limited liability company, association or joint venture that has been awarded a City contract. e) Emergency contract means a contract that is awarded on an emergency basis due to a threat of harm to person or property or threat of disruption of governmental services. f) Inclusive Procurement and Contracting Board means the eleven (11) member entity appointed by Common Council, the Mayor, Department of Public Works, Department of Community Investment, the AFL-CIO chapter serving the City of South Bend, and Regional Chamber of Commerce as established in this Chapter g) Local business means a small business located within the geographic area of St. Joseph County, Indiana, Elkhart County, Indiana, Porter County, Indiana, Lake County, Indiana, LaPorte County, Indiana, Marshall County Indiana, and Berrien County, Michigan where at least 30% of firm employees live within those geographic boundaries. h) Mayor means the Mayor of the City . i) Program means the Minority and Women Business Enterprise Inclusion Program established by this Chapter. j) Program Administrator means the person designated by and reporting directly to the Mayor to support the City' s inclusion, diversity, equity, and access goals. At the passing of this ordinance, the designee shall be the Diversity and Inclusion Officer, the title of whom is subject to future change. The Program Administrator shall work with the City's Inclusive Procurement and Contracting Board, Legal Department, and contracting agencies to assist in making recommendations, overseeing, implementing, and enforcing this Chapter. k) Program Plan means the Minority and Women Business Enterprise Inclusion Program Plan l) Specialized Engineering Services means engineering services beyond design or build of basic structures in which the services involve more specific emphasis on particular areas of applied mathematics, applied science, and narrow specific types of application. Specialized engineering services may include but are not limited to aquatic and environmental engineering; computer engineering (the combination of computer science and electronics engineering to develop hardware and software for governmental bodies); electrical power generation; geotechnical engineering; highway and transportation engineering (the safe, efficient, rapid, convenient, economic and environmentally compatible movement of people, goods and transportation); safety engineering; water resource & supply engineering(includes water supply, treatment, distribution, and management); sanitary engineering (includes wastewater treatment for sewage or industrial wastewater); robotics; thermodynamics; and telecommunications engineering m) Subcontractor means any person entering into a contract with a contractor to directly furnish services or supplies toward the contract. Sec. 14.5-3. Establishment of Program Plan The Program Administrator shall provide City-wide oversight and be responsible for working with affected departments to develop policies, procedures, metrics, and reporting mechanisms designed to achieve the goals of this Chapter 14.5. These policies, procedures, and reporting mechanisms shall be incorporated into the Minority and Women Business Enterprise Inclusion Program Plan (“Program Plan”). The City's Program Administrator shall be responsible for developing and maintaining the Program Plan. Any changes made by the Program Administrator to the Program Plan (as incorporated in this ordinance) will be reviewed by the Inclusive Procurement and Contracting Board at the next regular meeting following the implementation of the change. On an annual basis, the Program Administrator shall provide to Council and make public the current version of the Program Plan. In addition, on an annual basis, the Program Administrator shall present to Council an overview of the current version of the Program Plan, including any changes in policies, procedures, metrics, or reporting mechanisms. Sec. 14.5-4. Inclusive Procurement and Contracting Board a) Eleven-Member Board: There is created a City Inclusive Procurement and Contracting Board to assist in the implementation of the goals and purposes of this Chapter. The Board shall consist of eleven (11) members. three (3) members shall be appointed by the Common Council, three (3) members shall be appointed by the Mayor, one (1) member shall be appointed by the AFL-CIO chapter serving the City of South Bend, one (1) member shall be appointed by the South Bend Regional Chamber of Commerce or another officially recognized Chamber of Commerce serving South Bend, one (1) member shall be the Program Administrator or her/his /their designee, one (1) member shall be the Executive Director of Community Investments or her/his/their designee, and one (1) member shall be the Director of Public Works or his/her/their designee. b) Term of Appointments: All Board appointments expire on December 31st of the second year for which they are made. Board members may be removed at the pleasure of the appointing authority prior to the expiration of their terms. c) Board Officers: The Board shall elect from its membership a President and a Vice- President, who shall act as the presiding officer in the absence of the President. The Board shall also elect from its membership a Secretary, who shall provide notice and maintain minutes of Board meetings as required under the Indiana Open Door Law. d) Board members shall serve without compensation e) The Board shall have the following duties and authority: 1. The Board, in consultation with the Program Administrator, shall fix an annual utilization goal percentage for the utilization of MWBEs within the City's geographic marketplace. This annual utilization goal will be based on up-to- date data on weighted availability of MWBE firms in the City’s geographic marketplace, gathered in compliance with the procedures outlined in the Program Plan. 2. The Board shall conduct a formal review of the effectiveness of the City in meeting its annual contracting and procurement goals for MWBEs located within the City's defined geographic marketplace. 3. The Board shall provide feedback and recommendations to the Program Administrator on changes to the Program Plan that would increase the effectiveness of the City in meeting its annual contracting and procurement goals. 4. The Board, in consultation with the Program Administrator, shall provide input regarding all efforts employed by the City to foster inclusive procurement and contracting; 5. The Board shall make recommendations to the Mayor and Common Council based on future needs and assessments; 6. The Board shall consult with the Program Administrator regarding the Office of Diversity and Inclusion’s budget prior to the annual budget cycle; 7. The Board shall review the MWBE Inclusion Program Plan, in collaboration with the Program Administrator, City Director of Purchasing, and Legal Department annually to ensure legal compliance and adherence to legislative intent; 8. The Board shall work with the City in furtherance of its efforts to eliminate barriers to participation in City contracts, and shall promote diversity and inclusion, by multiple means; and 9. The Board shall take on additional duties as specified in the Program Plan Sec. 14.5-5. Measures to ensure equitable opportunities for minority and women contractors and subcontractors; The City shall develop and use measures designed to accomplish the goals and purposes of this Chapter. Specifically, these measures may include either or both of the following: a) Race- and Gender-Neutral Measures: Measures designed to remedy difficulties in accessing procurement opportunities that facilitate the participation of all firms in City contracting activities. These measures are designed to remedy difficulties such as restrictive bid specifications, excessive experience requirements, and overly burdensome insurance and/or bonding requirements. These measures do not require the City to use race or gender in its procurement decision-making. These race and gender neutral measures shall be detailed in the Program Plan, and shall include, but are not limited to: 1. Implementation of an electronic contracting data collection, monitoring and notification system; 2. Providing resources to implement the Program; 3. Adoption of a Small Business Enterprise target market; and 4. Increase of vendor communication and outreach to MWBEs and small firms b) Race- and Gender-Conscious Measures: The City shall develop and use constitutionally appropriate, narrowly tailored race- and gender-conscious measures to facilitate the participation of minority and women owned firms in City contracting activities and affirmatively address past discrimination, as identified in a current disparity study or other evidentiary analysis. These measures shall be detailed in the Program Plan, and shall include, but are not limited to: 1. Goal Setting as an annual, overall target for MWBE utilization in City contracts (prime contracts and subcontracts combined); 2. Goal setting for specific contracts that are narrowly tailored to the specifics of the project; 3. Clearly delineated policies and forms by which a bidder or proposer can establish that it has either met the contract goal(s) or made good faith efforts to do so; 4. A process to appeal adverse determinations under the program that meets due process standards; 5. A full and thorough review of the evidentiary basis for the MWBE program conducted approximately every five to seven years in time to meet the sunset date; and 6. A sunset date for the MWBE program, to occur seven years from the date of the most recent evidentiary review outlined in subsection (h), that is, when it will end unless reauthorized based upon the findings of an updated disparity study or other evidentiary review. The specific measures utilized by the City shall be documented in the Program Plan and shall be updated and maintained by the Program Administrator. Sec. 14.5-6. Nondiscrimination Provisions a) All contracts for the purchase of goods, supplies , services and construction awarded by the City shall contain provisions requiring the contractor and its subcontractors not to discriminate against any firm or employee or applicant for employment in the performance of the contract, with respect to hire, tenure, terms, conditions or privileges of contract or employment, or any matter directly or indirectly related to contracting or employment because of race, religion, color, sex, national origin, ancestry, sexual orientation, gender identity, or due to age or disability that does not affect that person’s ability to perform the work. b) The City will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract on the basis of race, religion, color, sex, disability, national origin, ancestry, sexual orientation or gender identity. c) The City will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of its Program with respect to individuals of a particular race, religion, color, sex, national origin, ancestry, sexual orientation, gender identity, or due to age or disability that does not affect that person’s ability to perform the work. d) In addition to the commitments to nondiscrimination outlined above, the City shall take affirmative steps to remedy historic discrimination as identified in a Disparity Study conducted from time to time by developing and using constitutionally appropriate, narrowly tailored race- and gender-conscious measures to facilitate the participation of minority and women owned firms in City contracting. Further, in connection with the City’s narrowly tailored race- and gender-conscious measures, contractors and subcontractors may facilitate the utilization of MWBEs in goal-eligible contracts. Sec.14.5-7. Registration Required for All Vendors. All vendors seeking contracting opportunities with the City shall complete the City's vendor registration process. Registration requirements shall include the provision of information related to a firm's status as a small, local, woman, or minority owned business in addition to general business information as established by the City. Sec. 14.5-8. Violations and Sanctions Violations by vendors of the procedures and policies established in the Program Plan may result in sanctions as defined in the Program Plan, including a determination that the violating party is non-responsive and subject to being barred from future City contracts. Sec. 14.5-9. Maintenance of Records and Reporting Procedures a) The City shall implement a comprehensive tracking and reporting system whereby the City can identify and collect information on awards to and utilization of all firms, including MWBEs and other certified businesses as appropriate. The system shall also identify and track subcontractor participation and prompt payment compliance. b) The City will prepare and make public an annual report documenting minority and women-owned business participation, including but not limited to, the utilization of MBEs and WBEs on all City Contracts governed by this Program and other certified businesses as appropriate. This report will be presented to the Inclusive Contracting and Procurement Board and the Common Council and will be made publicly available. Sec. 14.5-10. Emergency Contracts and Certain Professional Services Contracts Exceptions a) The provisions of this chapter shall not apply to Emergency Contracts. b) Because no attorney may be employed by the City without authorization of the City’s Corporation Counsel (Ind. Code 36-4- 9-12), legal services are excepted from contract-specific goal setting under the City’s Program created by this Chapter. c) Specialized engineering services as defined in Section 14.5-2(k) of this Article require selection on a particularized need basis, which often requires a nationwide search in order to identify service providers with the requisite specialized skill set. Factors include the length and breadth of the service provider’s experience in the specialty field, reputation for exceptional performance, and sufficiency and experience of service provider’s workforce relative to the timing and complexity of the project, among others. At this time, specialized engineering services shall not require contract specific goal setting under the City’s Program created by this Chapter. d) Notwithstanding exceptions (b) and (c) of this Section, due consideration shall always be given to any such qualified MWBE service provider within the City’s geographic market area, and the City shall proactively identify and provide opportunities for MWBE’s who perform engineering or legal services to expand into more specialized areas of expertise useful to the City. SECTION II. Severability: If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason declared to be unconstitutional or otherwise invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this ordinance. SECTION III. This ordinance shall be in full force and effect from and after its passage by the Common Council, approval by the Mayor, and legal publication. _________________________________________________________ Karen White, Council President South Bend Common Council Attest: _______________________________ Dawn M. Jones, City Clerk Office of the City Clerk Presented by me, the undersigned Clerk of the City of South Bend, to the Mayor of the City of South Bend, Indiana on the _______ day of ____________________, 20___, at ________ o’clock ___. m. _________________________________ Dawn M. Jones, City Clerk Office of the City Clerk Approved and signed by me on the ____ day of _________________, 20___, at _____ o’clock ___. m. _________________________________ James Mueller, Mayor City of South Bend, Indiana