Microsoft Word - 10.16.2018 Attachment 1 Exhibit A Redlined Final.docx

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Part C. Equal Business Opportunity Program

Sec. 2-80.20. Policy, purpose, and objectives.

Sec. 2-80.21. Definitions.

Sec. 2-80.22. Scope and Exclusions.

Sec. 2-80.23. Office of Equal Business Opportunity.

Sec. 2-80.24. Commercial Nondiscrimination Policy.

Sec. 2-80.25. Factual Predicate and Purpose.

Sec. 2-80.26. Administrative Reforms.

Sec. 2-80.27. Affirmative Procurement Initiatives.

Sec. 2-80.28. Program Administration.

Sec. 2-80.29. Severability Clause.

Sec. 2-80.30. Sunset.

Secs. 2-80.31—2-80.40. Reserved.

Sec. 2-80.20. Policy, purpose, and objectives.

It is the policy of the Board of County Commissioners of Palm Beach County, Florida (the Board)

that the County shall use its best efforts to ensure that all segments of its business population, including,

but not limited to, small, local, minority, and women-owned businesses, have an equitable opportunity to

participate in the County's procurement process, prime contract, and subcontract opportunities, and that no

business shall be excluded from participation, denied benefits of, or otherwise discriminated against, in

connection with the award and performance of any contracts with the County on the grounds of race, color,

national origin, religion, ancestry, sex, age, marital status, familial status, sexual orientation, gender identity

or expression, disability or genetic information. Moreover, the specific purposes and objectives of this

Ordinance are as follows:

1. This Equal Business Opportunity (EBO) Ordinance, and the Policy and Procedure Manual

(PPM) guidelines established pursuant to this Ordinance, shall serve the County’s

compelling interest to remedy the various ongoing effects of marketplace discrimination

against Small/Minority/Women Business Enterprises (S/M/WBEs) that are ready, willing,

and able to sell goods and services to the County.

2. The narrowly-tailored remedial efforts established in this EBO Program OrdinanceEBO

Ordinance are designed to promote greater availability, capacity development, and contract

participation by S/M/WBEs in County contracts, and in doing so, enhance competition to the

benefit of the County’s residents and taxpayers.

3. This EBO Program OrdinanceEBO Ordinance is intended, in part, to further the County’s

compelling interest in ensuring that it is neither an active nor passive participant in private

sector marketplace discrimination, and to actively promote equal opportunity for all

segments of the contracting and business community to participate in County contract

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opportunities.

4. The County shall resort to the use of race- and gender-conscious means for addressing

disparities within the realm of its contracting only when it is apparent that the use of race-

and gender-neutral means alone will likely be insufficient to remedy the effects of identified

discrimination.

5. Having found that it has a compelling governmental interest to remedy the effects of

discrimination upon County contracts, the Board directs the County Administrator or

designee, the Director of Purchasing or designee, and the Director of the Office of Equal

Business Opportunity (Office of EBO) or designee to collaborate in periodically

recommending to the Board possible future amendments necessary to fully effectuate the

purposes and objectives established in this EBO Program OrdinanceEBO Ordinance. Such

proposed amendments shall also be narrowly-tailored in accordance with applicable law,

and the specific barriers to S/M/WBE participation identified within the County’s factual

predicate as described below in Section 2-80.25 of this EBO Program OrdinanceEBO

Ordinance.

6. It is the policy of the County to take all necessary, reasonable, and legal action to prevent

discrimination and to ensure that all businesses, including S/M/WBEs, are afforded the

maximum practicable opportunity to participate in the County’s purchasing and contracting

processes.

7. As referenced in Resolution 2017-1770 as amended, it is the policy of the Board to ensure

that the firms it engages in business with do not discriminate on the basis of race, color,

national origin, religion, ancestry, sex, age, marital status, familial status, sexual orientation,

gender identity or expression, disability, or genetic information in the solicitation, selection,

hiring or commercial treatment of subcontractors, vendors, suppliers, or commercial

customers, nor shall any such firms retaliate against any person for reporting instances of

such discrimination. The firms shall provide equal opportunity for subcontractors.

8. The Office of EBO shall have primary oversight responsibility with the full support and

cooperation of all other County offices and departments in the administration of the EBO

Program, as well as in the administration of other economic inclusion policies contained in

the PPM.

An inclusive, robust, and competitive local marketplace is consistent with the County’s public

interest in reducing the economic burden on the County residents and taxpayers it serves. In furtherance

of its mission to efficiently and cost-effectively serve the public interest on behalf of the residents of Palm

Beach County, the County seeks to promote the formation, growth, and competitive viability of its indigenous

business population through the economic inclusion policies and procedures set forth in this EBO Program

OrdinanceEBO Ordinance.

(Ord. No. 2018-___, § II, Part C, __-__-__)

Sec. 2-80.21. Definitions.

For purposes of this EBO Ordinance, the following terms shall have the meanings set forth below.

Acting as a conduit means, in part, not acting as a regular dealer by making sales of material, goods

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or supplies from items bought, kept in stock and regularly sold to the public, as opposed to only government

agencies, in the usual course of business. Brokers, manufacturer's representatives, sales representatives

and non-stocking distributors are considered to be conduits that do not perform a Commercially Useful

Function.

Affiliation means that the entity applying for S/M/WBE certification controls, has the power to control,

or is controlled by another entity or entities, or an identity of interests exists between the entity applying for

S/M/WBE certification and another entity or entities. In determining whether an Affiliation exists, it is

necessary to consider factors including, but not limited to, common ownership, common management,

common use of facilities, equipment, and employees, contractual obligations and family interest in the

business. Affiliated entities must be considered together in terms of gross receipts in determining whether a

business entity meets S/M/WBE eligibility criteria.

Affirmative Procurement Initiatives (API) refers to various EBO Program tools and Solicitation

incentives that are used to encourage greater prime and subcontract participation by Small Business

Enterprise (SBE) firms or Minority/Women Business Enterprise (M/WBE) firms, including, but not limited to,

bonding assistance, evaluation preferences, subcontracting goals, vendor rotations, and joint venture

incentives. The County’s EBO Program PPM and other PPMs adopted by the County Administrator will

contain for complete details on the operation of each and every API.

Best Value Contracting or Request for Proposal (RFP) means any competitive method of procurement

in which low price may be only one factor of several factors, but not necessarily the determining factor in the

awarding of a contract, such as a Request for Proposals (RFP).

Board means the bBoard of cCounty cCommissioners of Palm Beach County, Florida.

Business Category means Construction; professional services procured pursuant to the Consultants’

Competitive Negotiations Act (CCNA Services); professional services other than CCNA, Goods, and Other

Services. For purposes of S/M/WBE eligibility criteria, a business entity shall be considered for certification

eligibility in the business categories in which it successfully has performed and demonstrated capability.

County Administrator means the County Administrator for Palm Beach County.

CCNA refers to the Consultants Competitive Negotiation Act.

Centralized Bidder Registration System (CBR) means an electronic system of hardware and software

programs, including, but not limited to, the VSS, by which the County requires all prospective respondents

and subcontractors that are ready, willing, and able to sell goods or services to the County to register. All

businesses awarded a County contract shall be required to register in the CBR. The CBR System assigns a

unique identifier to each registrant that is then required for the purpose of submitting solicitation responses

and invoices, and for receiving payments from the County. The CBR-assigned identifiers are also used by

the Office of EBO for measuring relative availability and tracking utilization of S/M/WBE and all other firms at

the prime and subcontract levels by industry or commodity codes and for establishing annual Aspirational

Goals and contract-by-contract subcontracting goals. The details regarding fields of information captured and

the functionalities of the CBR system shall be reflected in the EBO Program PPM.

Certification means the process by which the Office of EBO determines a firm to be a bona-fide small,

minority, and/or women business enterprise. Any firm may apply for multiple certifications that cover each

and every status category e.g., SBE, Minority Business Enterprise (MBE), or Women Business Enterprise

(WBE) for which it is able to satisfy eligibility standards. The Office of EBO may contract these services to a

regional certification agency or other entity. For purposes of certification, the County may accept any firm that

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is certified by local government entities and other organizations identified by the Office of EBO that have

adopted certification standards and procedures similar to those followed by the Office of EBO, provided the

prospective firm satisfies the eligibility requirements set forth in the County’s PPM.

Certified Small Minority Women Business Enterprise (S/M/WBE) means a business which has been

certified by the Office of EBO as having satisfied all of the eligibility requirements for participation in the

EBO Program as either a small, minority, and/or woman business enterprise.

Code means the Palm Beach County Code.

Commercially Useful Function is a term that means an S/M/WBE firm is performing a Commercially

Useful Function when it is responsible for execution of the work of the County’s contract and is carrying out

its responsibilities by actually performing, staffing, managing and supervising the work involved. To perform a

Commercially Useful Function, the S/M/WBE firm must also be responsible, with respect to materials and

supplies used on the contract, and that are a subset of the broader scope of work that is the subject matter of

the goods and services that are being purchased by the County under the terms of the prime contract. The

S/M/WBE firm must also be responsible for negotiating price, determining quantity and quality, ordering the

material, and installing (where applicable) and paying for the material itself. To determine whether an

S/M/WBE firm is performing a Commercially Useful Function, an evaluation must be performed of the amount

of work subcontracted, normal industry practices, whether the amount the S/M/WBE firm is to be paid under

the contract is commensurate with the work it is actually performing and the S/M/WBE credit claimed for its

performance of the work, and other relevant factors. Specifically, an S/M/WBE firm does not perform a

Commercially Useful Function if its role is limited to that of an extra participant in a transaction, contract or

project through which funds are passed in order to obtain the appearance of meaningful and useful S/M/WBE

participation, when in similar transactions in which S/M/WBE firms do not participate, there is no such role

performed.

Committee means the Equal Business Opportunity Advisory Committee (EBOAC).

Construction means Construction as defined in the Palm Beach County Purchasing Code (Purchasing

Code), including but not limited to the use of services and skilled trades for the assembly of materials

necessary to build or improve land or infrastructure such as roads and bridges and paved surfaces, or to build,

improve, or repair vertical structures such as buildings.

Contract means Contract as defined in the Purchasing Code, including but not limited to all types of

agreements, regardless of what they may be called (purchase orders, decentralized purchase orders (DPOs),

agreements, etc.), for the procurement of goods and services; narrowly definitiondefined as a written

agreement signed by all parties for the procurement of professional services or construction.

Contract Request means a requisition for the procurement of professional services or construction

services.

Control means the authority of a person or business owner to sign responses to solicitations and

contracts, make price negotiation decisions, sell or liquidate the business, and have the primary authority to

direct the day-to-day management and operation of a business enterprise without interference from others.

County means Palm Beach County.

Days means business days, unless specified otherwise.

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Decentralized Purchase Order (DPO) refers to the method of procurement for County smallmeans

any purchase of a good or service that is valued below less than five thousand dollars ($5,000).

Domiciled in the County means the business holds a valid Palm Beach County business tax receipt

and has a Significant Business Presence in the County. In order to establish a Significant Business

Presence in the County, the business must:

(1) Demonstrate that t he business has been conducted at the county location, and sufficient full-

time employees are maintained in the County to perform the contracted work;

(2) The County business tax receipt bears the county address, and the county location is in an area

zoned for the conduct of such business;

(3) The county location must be verifiable through documentation such as property tax bill or lease

agreement; and

(4) The county location should be identifiable through signage, telephone listing, and/or website or

social media. On-site visits may be conducted at any time to determine continued adherence to

requirements and additional documentation may be requested on a case-by-case basis. A county

telephone number or post office box in the County shall not be sufficient without further

documentation, to establish the domicile requirements and other requirements of the code.

Equal Business Opportunity Advisory Committee (EBOAC) refers to a citizen committee made up of

no more than fifteen (15) representatives of trade groups and members of the general business community

designated and appointed by the County Administrator or designee, the Office of EBO, and the Board as

specified in the PPM. EBOAC members must be residents of Palm Beach County. This advisory group shall:

(a) assist the Director of the Office or EBO or designee, the County Administrator or designee, and the Board

in reviewing the continuing policies, practices, and programs for vendors, prime contractors, and

subcontractors that promote S/M/WBE participation; and (b) make recommendations to the Director of the

Office of EBO, the County Administrator or designee, and the Board concerning modifications of such

policies, programs, and practices established pursuant to this EBO Program OrdinanceEBO Ordinance.

Evaluation Preference means an API that may be applied by the Goal Setting Committee to Requests

for Proposals for Construction, Professional Services, Other services, and Goods contracts that are to be

awarded on a basis that includes factors other than lowest price and wherein responses that are submitted to

the County by S/M/WBE firms or firms that have teamed with S/M/WBE firms may be awarded additional

points in the evaluation process in the scoring and ranking of their proposals against those submitted by other

prime respondents or bidders.

Formal Solicitations means Solicitations for contracts that are equal to or exceed the Mandatory Bid

or Proposal amount as defined in the Purchasing Code, $100,000 or greater as may be amended.

Front means a business which purports to be a S/M/WBE business but which is actually owned

and/or controlled in a manner which does not comply with the County's requirements of certification, or a

business that purports to be performing a portion of work under a contract as a certified S/M/WBE firm, but

is not performing a Commercially Useful Function.

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Goals means the level of S/M/WBE participation projected to be obtained either annually within a

business category, or in the performance of a specific contract, and is expressed as a percentage of the

total dollar volume of participation of all businesses in the County's procurement of goods, services and

construction either annually within a given business category, or within a specific contract. In the absence

of waivers or exclusions, the standard SBE contract-specific subcontracting goal is 20% regardless of

industry segment. M/WBE contract-specific subcontracting goals are set on a case-by-case basis by the

Goal Setting Committee, and are subject to waiver requests from Originating Departments and prospective

respondents or bidders. Such contract-specific S/M/WBE subcontracting goals are set based upon various

criteria, including the relative availability of qualified S/M/WBE subcontractors to perform the scope of work

required for performance of a particular contract.

Goal Setting Committee (GSC) means a committee, or series of committees, appointed and chaired

by the County Administrator or designee that includes, at a minimum, the Director of the Office of EBO or

designee, the Director of Contract Development and Control or designee, the Director of Purchasing or

designee, the Director of Facilities Development and Operations (FDO) or designee, the County Attorney

or designee and the Director or designee of the Originating Department (if the Originating Department is

neither Purchasing nor FDO) all without duplication of designees. The County Administrator or designee

may also appoint two ex-officio members of the EBOAC to serve on any GSC purely in an advisory and

non-voting capacity. The GSC establishes S/M/WBE Program Goals for Palm Beach County (e.g., Annual

Aspirational Goals and Contract-by-Contract Subcontracting Goals) based upon Industry Categories,

vendor availability and project-specific characteristics. The GSC also makes determinations about which

Affirmative Procurement Initiatives (APIs) are to be applied to specific contracts based upon various criteria.

Good Faith Efforts (GFE) means documentation of the Respondent’s respondent’s or bidder’s intent

to comply with EBO Program Goals and procedures including, but not limited to, the following: (1)

documentation as stated in the solicitation reflecting the Respondent’s respondent’s or bidders commitment

to comply with SBE or M/WBE Goals as established by the Office of EBO for a particular contract; or (2)

documentation of efforts made toward achieving the SBE or M/WBE Program Goals (e.g., solicitations of

bids/proposals/qualification statements from all qualified SBE firms or M/WBE firms listed in the Office of

EBO’s directory of certified SBE or M/WBE firms; correspondence from qualified SBE or M/WBE firms

documenting their unavailability to perform SBE or M/WBE contracts; documentation of efforts to subdivide

work into smaller quantities for subcontracting purposes to enhance opportunities for SBE or M/WBE firms;

documentation of a Prime Contractor’s posting of a bond covering the work of SBE or M/WBE Subcontractors;

documentation of efforts to assist SBE or M/WBE firms with obtaining financing, bonding or insurance required

by the Rrespondent or bidder; and documentation of consultations with trade associations and consultants

that represent the interests of SBE and/or M/WBEs in order to identify qualified and available SBE or M/WBE

Subcontractors). Scoring of Good Faith Efforts documentation and administrative determinations regarding

the adequacy of such Good Faith Efforts is the responsibility of the Office of EBO. The Office of EBO’s scoring,

determinations, and any appeals of such GFE determinations by the Office of EBO shall be in accordance

with the procedures established in the PPM.

Goods means Goods as defined in the Purchasing Code, including but not limited to commodities,

merchandise, other tangible materials, and/or manufactured products that are bought and sold in commerce.

Graduation means when an S/M/WBE firm graduates from the County’s EBO program Program

because it has met the criteria for graduation as set forth in the County’s PPM. A firm’s graduation from

participation as an S/M/WBE firm in the EBO Program does not permanently affect its eligibility to be recertified

and to participate in the County’s EBO program as an S/M/WBE. Graduated S/M/WBE firms shall be eligible

to apply for S/M/WBE re-certificationcertification following the expiration of the two-year period immediately

following graduation. Such application for S/M/WBE re-certificationcertification shall be granted only on

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condition that the graduated S/M/WBE firm presents documentation as required by the Office of EBO that

establishes that the S/M/WBE firm’s annual revenues have fallen below the small business size standards for

the relevant industry as reflected in the PPM for two consecutive years following the initial post-graduation

period.

Gross receipts means the total annual sales or revenues for the firm or certification applicant as

stated on its federal income tax return, or for a new business that has not yet filed a federal income tax

return, on its audited financial statements before deductions for returned items, allowances and discounts.

Home business means a small business that operates from the business owner's home. Home

businesses usually have a very small number of employees that are often members of the business owner's

family. A home business is not affiliated with, nor a subsidiary of another company located outside

of the home. Home businesses meeting this definition are eligible for certification as a small business,

provided they meet all other certification criteria. Home offices of an employee working for a company

located in another county do not establish domicile in Palm Beach County.

ILA means interlocal agreement; agreement between government entities.

Independent business is a business that operates free of control or reliance on another business.

Recognition of the business as a separate legal entity for tax or corporate purposes is not necessarily

sufficient for recognition as an independent business. In determining whether a potential small business is

an independent business, the County shall consider all relevant factors, including but not limited to, the date

the business was established, the adequacy of its resources for the type of work specified, relationships

with affiliates and subsidiaries, and the degree to which financial, equipment leasing and other

relationships with other businesses vary from established industry practices. If there has been a recent

change in ownership of the business, a review of whether the acquisition of the business was done pursuant

to an arm's length transaction will also be considered in determining independence of the business.

Independent contractor means a person who contracts to do work for another person according

to his or her own processes and methods and is not subject to the control of the other person except

for what is specified in the agreement for a specific job.

Individual means an adult person that is of legal majority age.

Informal Solicitation means any Solicitation for Construction Services, Professional Services, Goods,

or Other Services where the that are valued at $5,000 or greater, but below $100,000 value of the goods

or services being solicited is equal to or greater than $5,000 and less than $100,000 as stated in the

Purchasing Code, as amended.

Joint Venture means an association or teaming of two (2) or more persons or businesses to carry

out a single business enterprise for profit for which purpose they combine their property, capital, efforts,

skills and knowledge.

Joint Venture Incentives means an Affirmative Procurement Initiative (“API”) that provides

inducements for non-S/M/WBE firms to collaborate with S/M/WBE partners in responses to solicitations and

for purposes of performing a Prime Contract to supply Goods to, or to perform Construction, Professional,

or Other Services on behalf of the County. Joint Ventures are established by written agreements between

two or more independently owned and controlled business firms to form a team or a third business entity

solely for purposes of undertaking distinct roles and responsibilities in the completion of a given contract.

Under this business arrangement, each Joint Venture partner shares in the management of the Joint

Venture and also shares in the profits or losses of the Joint Venture enterprise commensurately with its

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contribution to the venture. Incentives under this API may include Evaluation Preferences that are tied to

the percentage of SBE or M/WBE participation in the joint venture, and extra contract option years or

mobilization fees provided to qualifying Joint Ventures in certain Construction Services, Professional

Services, Goods and Other Services contracts.

Leased employee means the employee of a leasing company that leases professional employees

to work for another business organization on a contractual basis. The business organization maintains

management of the work performed by the leased employee. The leasing company handles administrative

responsibilities such as, but not limited to, payroll, compliance with state and federal regulations and

unemployment insurance.

Manufacturer means a firm or business entity that produces an item from raw materials or that

substantially alters the form of a product in order to make it suitable for a particular use.

Minority Business Enterprise (MBE) means any legal entity, except a joint venture, that is organized

to engage in for-profit transactions, which is certified as being at least fifty-one percent (51%) owned,

managed and controlled by one or more Minority Group Members, and that is ready, willing, and able to sell

goods or services that are purchased by the County. To qualify as an MBE, the enterprise’s annual

revenues and number of employees shall be no greater than the business size standards for its industry as

specified in the PPM, and the MBE shall meet the Significant Business Presence requirements as defined

herein. In order to be eligible for participation in S/M/WBE APIs, the MBE firm shall be currently certified as

being in compliance with the size standards as reflected in the PPM, and as having satisfied all eligibility

requirements to participate in the EBO Program. Unless otherwise stated, the term MBE as used in this

Program is not inclusive of women-owned business enterprises (WBE).

Minority Group Members means African-Americans, Hispanic-Americans, Asian-Pacific Americans,

and Native Americans legally residing in, or that are citizens of, the United States or its territories, as defined

below:

African-Americans: Persons with origins in any of the black racial groups of Africa.

Hispanic-Americans: Persons of Mexican, Puerto Rican, Cuban, Spanish, or Central and South

American origin.

Asian-Pacific Americans: Persons having origins in any of the original peoples of the Far East,

Southeast Asia, the Indian subcontinent, or the Pacific Islands.

Native Americans: Persons that are members of a federally recognized Indian tribe or that have no

less than one-sixteenth (1/16

) percentage origin in any of the Native American Tribes, as recognized

by the U.S. Department of the Interior, Bureau of Indian Affairs and as demonstrated by possession

of personal tribal role documents. A "federally recognized Indian tribe" means an Indian tribe,

band, nation, rancheria, pueblo, colony or other organized group or community, including any Alaska

native village, which was recognized by the Secretary of the Interior on October 1, 1985, as having

special rights and is recognized as eligible for the services provided by the United States to Indians

because of their status as Indians, and any tribe that has a pending application for federal recognition

on October 1, 1985, as having special rights and is recognized as eligible for the services provided

by the United States to Indians because of their status as Indians, and any tribe that has a pending

application for federal recognition on October 1, 1985.

Minority/Women Business Enterprise (M/WBE) means a firm that is certified as either a minority

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business enterprise or as a women business enterprise for purposes of the EBO Program as being at least

fifty-one percent (51%) owned, managed, and controlled by minority group members and/or women of legal

majority age that are lawfully residing in, or are citizens of, the United States or its territories, that is ready,

willing, and able to sell goods or services that are purchased by the County, and that meets the Significant

Business Presence requirements as defined herein. In order to be eligible for participation in S/M/WBE

APIs, the M/WBE firm shall be currently certified as being in compliance with the size standards as reflected

in the PPM, and as having satisfied all eligibility requirements to participate in the EBO Program. Unless

otherwise stated, the term MBE as used in this Program is not inclusive of women-owned business

enterprises (WBE).

In addition, the Director of the Office of EBO is authorized to establish a second tier size standard for

Emerging M/WBEs whose size standards are 50% or less than the size standards for M/WBEs that are

eligible for APIs whose application is limited to Emerging M/WBEs. The size standards for Emerging M/WBEs

shall be posted in the PPM.

M/WBE Segmented Subcontracting Goals means the application of multiple goals for M/WBE

participation within annual Aspirational Goals or for M/WBE subcontracting goals on an individual County

contract wherein an overall aggregated M/WBE goal is accompanied by subsets of one or more smaller

goals. Such segmented goals specifically target the participation of a particular segment of business

enterprises owned and controlled by WBEs or certain Minority Group Members (e.g., African-Americans or

Hispanic-Americans) based upon relative availability and significantly greater patterns of underutilization

and disparity within an industry as compared to other gender and Minority Group member categories of

M/WBEs. The application of Segmented M/WBE goals is intended to ensure that those segments of

M/WBEs that have been most significantly and persistently underutilized receive a fair measure of remedial

assistance.

Other Services means services that are neither CCNA Services, Professional Services nor

Cconstruction-related.

Originating Department means the requestor, person or unit requesting the item to be purchased.

Owned, for the purpose of determining whether a business is an M/WBE minority or women business

enterprise, shall mean that the minorities or women, as the context requires, shall possess an ownership

interest of at least fifty-one (51) percent.

Points means the quantitative assignment of value for specific evaluation criteria in the vendor

selection process used in some construction, professional services, other services, and goods contracts

(e.g., 15 points out of a total of 100 points assigned for S/M/WBE participation as stated in response to a

Request for Proposals.)

Policies and Procedures Manual (PPM) refers to the administrative policies and procedures manual

for the EBO Program.

Prime Contractor means the vendor or contractor to whom a purchase order or contract is issued by

the County for purposes of providing goods or services to the County.

Professional Services means Professional Services as defined in the Purchasing Code, including but

not limited to any narrow discipline wherein a practitioner is required to have attained an advanced

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educational degree and/or credentials certifying a certain level of competency in the field that have been

issued by an independent private body or board on behalf of the profession, prior to representing themselves

to the public as a practicing member of that narrow discipline; a practitioner of a Professional Service has,

through education and practical experience related to a particular field, developed expert advisory and

programming skills as a vocation; this term also refers to any narrow discipline that has been recognized at

the discretion of the Director of Purchasing, (or has been specified within the Purchasing Code or

Purchasing PPM)as one where the high level of skills, technical expertise in the field, and/or the advanced

complexity and quality of advice provided by the potential or known practitioner(s) warrants a competitive

proposal or submittal process wherein the strength of professional credentials are weighed heavily in the

selection process (e.g., accounting, legal services, mapping, laboratory testing services, physician services,

nursing services, pharmacists, scientists, dentistry, financial advisory services, realtors, surveying services,

landscape design services, appraisers, engineers, architects, etc.).

Purchasing Code means Sections 2-51 through 2-58 of the Code as may be amended.

Race-Conscious (R/C) means any business classification or API wherein the race or gender of

business owners is taken into consideration (e.g., references to M/WBE programs and APIs that are listed

herein under the heading of “Race-Conscious”).

Race-Neutral (R/N) means any business classification or API wherein the race or gender of business

owners is not taken into consideration (e.g., references to SBE programs and APIs that are listed herein

under the heading of “Race-Neutral”).

Relevant Marketplace means the geographic market area affecting the EBO Program as determined

for purposes of collecting data for the 2017 Disparity Study, and for determining eligibility for participation

under various programs established by this EBO Program OrdinanceEBO Ordinance, and is defined as

Palm Beach County.

Request for Proposal (RFP) means Request for Proposal as defined in the Purchasing Code,

including but not limited to a competitive Solicitation where price is not the sole factor in determining contract

award; see also Best Value Contracting.

Requestor or Originating Department means the person or unit requesting item to be purchased.

Responsive Bidder or Offeror -– as defined in the Purchasing Code, including but not limited to a

person/firm that has submitted a bid or proposal which conforms in all material respects to the requirements

set forth in the invitation to bid, or request for proposal, including, but not limited to, the requirements and

specifications of the EBO Program.

Responsible Bidder or Offeror -– as defined in the Purchasing Code, including but not limited to a

person/firm with the capability in all respects to perform fully the contract requirements, and the tenacity,

perseverance, experience, integrity, reliability, capacity, facilities, equipment, financial responsibility and

credit which will assure good faith performance.

Significant Business Presence means that in order to qualify for participation as an S/M/WBE firm in

the EBO Program, the initial designated street address of the S/M/WBE firm’s principal office as stated in

its filings with the Florida Department of State must be located within Palm Beach County, or the firm must

have a significant business presence for at least one year within Palm Beach County, defined as: an

established place of business in Palm Beach County, from which at least 50% of its total full-time, part-time

and contract employees are domiciled and regularly based in Palm Beach County, and from which a

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substantial role in the S/M/WBE’s performance of a Commercially Useful Function on the County contract

is conducted. A location utilized solely as a post office box, mail drop or telephone message center or any

combination thereof, with no other substantial work function, shall not be construed to constitute a significant

business presence.

Small Business Enterprise (SBE) means a corporation, partnership, sole proprietorship, or other legal

entity for the purpose of making a profit that: (1) is independently owned and operated by individuals legally

residing in, or that are citizens of, the United States or its territories; and (2) is currently certified as having

annual revenues and / or number of employees that satisfy S/M/WBE size standards on an industry-specific

basis (i.e., Construction, CCNA Professional Services including Architectural and Engineering Design firms,

Professional Services, Goods, and Other Services) that are reflected in the PPM; and (3) also is domiciled

in Palm Beach County and satisfies the Significant Business Presence and other eligibility requirements for

participation in the EBO Program as defined herein. The initial size standards for SBE firms are as follows,

and may be periodically revised by the Director of the Office of EBO as necessary to satisfy and better serve

the purposes and objectives of this EBO Program OrdinanceEBO Ordinance, and shall thereafter be reflected

in the PPM:

(1) For a provider of Construction Services, the annual gross revenue shall not exceed nine million

dollars ($9,000,000) (averaged over the previous three (3) most recent years, or if in

business less than three (3) years, averaged over the duration of the provider’s existence).

(2) For a provider of Goods, the annual gross revenue shall not exceed five million dollars

($5,000,000) (averaged over the previous three (3) most recent years, or if in business less

than three (3) years, averaged over the duration of the provider’s existence).

(3) For a provider of Professional Services procured pursuant to the CCNA statute, the average

annual gross revenues shall not exceed five million dollars ($5,000,000) (averaged over the

previous three (3) most recent years, or if in business less than three (3) years, averaged over

the duration of provider’s existence).

(4) For a provider of other Non-CCNA Professional Services, the average annual gross revenue

shall not exceed four million dollars ($4,000,000) (averaged over the previous three (3) most

recent years, or if in business less than three (3) years, averaged over the duration of the

provider’s existence).

(5) For a provider of Other Services, the average annual gross revenue shall not exceed four million

dollars ($4,000,000) (averaged over the previous three (3) most recent years, or if in business

less than three years, averaged over the duration of the provider’s existence).

In addition, the Director of the Office of EBO is authorized to establish a second tier size standard for

Emerging SBEs that are eligible for small sheltered market contracts; and whose size standards are 50% or

less than the size standards for SBEs. If, and when, established, the size standards for Emerging SBEs

and Emerging M/WBEs shall be 50% or less of the sizes of SBE size standards, and shall also be the posted

in the PPM.

Small/Minority/Women Business Enterprise (S/M/WBE) means any for-profit business firm that is

certified as being either small, minority, and/or women-owned, controlled, and managed.

S/M/WBE Directory means a compilation of certified, graduated, and/or suspended small businesses

and M/WBEs which is maintained electronically and posted on the County website by the Office of EBO

and made available to contractor(s) or vendor(s) for use in identifying subcontractors, material suppliers,

etc.

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Solicitation is a generic term for an invitation that is issued by the County to prospective bidders,

vendors, or contractors asking them to compete for County commercial contract awards for specified goods

or services through response to either an Invitation for Bid or a Request for Proposal.

Subcontractor means any vendor or contractor that is providing goods or services to a prime

contractor in direct furtherance of the prime contractor’s performance of a defined scope of work or

deliverables under a contract or purchase order with the County as evidenced by an A copy of the executed

binding agreement between the prime contractor and the subcontractor which shall be submitted prior to the

County’s issuance of a notice to proceed to the prime contractor.

Subsidiary means a company whose controlling interest is owned by another company. A subsidiary

cannot be considered an independent business.

Supplier means a business that supplies goods or materials. A supplier may be distinguished from a

contractor or subcontractor who commonly adds specialized services or input to deliverable commodities.

Vendor Self Service (VSS) means the electronic system of hardware and software programs by which

the County requires all vendors, including subcontractors that are ready, willing, and able to sell goods or

services to the County to register. All vendors awarded a County contract shall be required to register in

VSS. The assigned identifiers are also used by the Office of EBO for measuring relative availability and

tracking utilization of S/M/WBE and all other firms at the prime and subcontract levels by industry or

commodity codes and for establishing annual Aspirational Goals and contract-by-contract subcontracting

goals. The details regarding fields of information captured and the functionalities of the CBR system shall

be reflected in the EBO Program PPM.

Women Business Enterprise (WBE) means any legal entity, except a joint venture, that is organized

to engage in for-profit transactions, that is certified for purposes of the EBO Program as being at least fifty-

one percent (51%) owned, managed, and under the control of one (1) or more non-minority women

individuals of legal majority age that are lawfully residing in, or are citizens of, the United States or its

territories, that is ready, willing, and able to sell goods or services that are purchased by the County, and

that meets the domicile and Significant Business Presence requirements as defined herein. In order to be

eligible for participation in S/M/WBE APIs, the WBE firm shall be currently certified as being in compliance

with the size standards as reflected in the PPM, and as having satisfied all eligibility requirements to

participate in the EBO Program. Unless otherwise stated, the term WBE as used in this Program is not

inclusive of MBEs.

All terms not specifically defined herein, but defined in the County's purchasing ordinance, chapter 2,

article III, division 2, part A of the County Code, as may be amended, shall carry the definition therein

described.

Sec. 2-80.22. Scope and Exclusions.

This Part shall apply to the Solicitation of all goods, services and construction by the County which

are governed by the County purchasing ordinance (sections 2-51—2-57 of the County Code, as may be

amended), including, but not limited to, every contract or other agreement between the County and any

governmental agency, quasi-governmental agency, corporation, vendor, or contractor, under which the

agency, corporation, vendor, or contractor directly or indirectly receives any fiscal assistance or remuneration

from the County for the purpose of contracting with businesses to perform construction, professional services,

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use by the County. As such, the County shall require the agency, corporation, vendor, or contractor to comply

with this EBO Program CodeEBO Ordinance in the solicitation, the award, and administration of that contract

or agreement, provided; however, that the following categories of contracts shall be excluded from the scope

and application of this EBO Program:

a. Contracts for the purchase of goods or services of a unique nature for which the County’s

Purchasing Department determines and confirms there is only a sole source of supply;

b. Contracts for electricity or water and sewage services from a municipal utility district or

governmental agency;

c. Emergency Purchase means a procurement made in response to a need when the delay

incident to complying with all governing rules, regulations, or procedures would be

detrimental to the interests, health, safety, or welfare of the County;

d. Contracts for the County’s lease or purchase of real property where the County is lessee or

purchaser;

e. Contracts for personal services involving the unique abilities or style of a particular individual;

f. Contracts or grants where conditions established by law or by external sources of funding

prohibit application of the EBO Program; and

g. Any other contracts or agreements that are expressly excluded from, or beyond the scope

of, the Purchasing Code.Any additional exclusions from the scope of this EBO Ordinance

shall be set forth in the EBO Program PPM.

Sec. 2-80.23. Office of Equal Business Opportunity.

The Equal Business Opportunity (EBO) Program will be administered and managed by the Director

of the Office of EBO. The Director of the Office of EBO shall be managed by, and report directly to, the County

Administrator or designee . The Director of the Office of Equal Business Opportunity or designee shall attend

all County Board meetings to address any Equal Business Opportunity Program issues that are addressed by

the Board’s meeting agenda. The Office of EBO also shall be primarily responsible for the application of

Affirmative Procurement Initiatives under the EBO Program preferences, the Local Business Enterprise

preferences, recommendations to the Purchasing Department and the Office of the County Attorney regarding

imposition of corrective actions and sanctions for non-compliance with EBO Policies, Programs, and

Procedures, and other administrative reforms that serve the objectives of this Part.

A representative of the Office of EBO shall serve as a voting selection panel member for the shortlist

and award of all “best value” contracts solicitations of the County where low price is not the sole determining

factor in contract award decisions. The role of the Office of EBO representative on such selection panels is

to promote fairness in scoring that does not improperly favor large and incumbent firms over the comparable

meaningful qualifications of S/M/WBE firms.

In addition, all prospective Formal Solicitations shall be reviewed in advance by the Office of EBO for

the purpose of recommending elimination of unnecessarily restrictive contract specifications terms, conditions,

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contract bundling features or selection criteria that may serve as barriers or impediments to S/M/WBE

participation. The Office of EBO shall, when appropriate, recommend de-bundling of large contracts to the

Purchasing Department and the Originating Department when such de-bundling may substantially increase

S/M/WBE contract opportunities and participation without imposing an undue burden on the County in terms

of contract management or cost.

The Goal Setting Committee shall determine which, if any, Affirmative Procurement Initiatives shall

be applied to each County Solicitation. The County Administrator or designee shall make the final

determination whenever consensus cannot be reached between the Office of EBO, the Purchasing

Department, and the Originating Department regarding proposed contract specifications and modifications to

same.

Sec. 2-80.24. Commercial Nondiscrimination Policy.

a. Statement of Policy

It is the policy of the County not to enter into a contract or to be engaged in a business relationship

with any business entity that has discriminated in the solicitation, selection, hiring or commercial treatment of

vendors, suppliers, subcontractors or commercial customers on the basis of race, color, national origin,

religion, ancestry, sex, age, marital status, familial status, sexual orientation, gender identity or expression,

disability, or genetic information, or on the basis of any otherwise unlawful use of characteristics regarding the

vendor's, supplier's or commercial customer's employees or owners; provided that nothing in this policy shall

be construed to prohibit or limit otherwise lawful efforts to remedy the effects of discrimination that have

occurred or are occurring in the relevant marketplace for Palm Beach County.

b. Policy Implementation

The Office of EBO shall implement this policy by periodically conducting outreach and by distributing

educational materials to the County’s contracting and vendor community and related trade associations to

advise such contractors, vendors and prospective respondents or bidders of this policy and the procedures to

be followed in submitting complaints alleging violations of this policy. In addition, the County Administrator,

the Director of Purchasing, and the Office of the County Attorney shall ensure that the following commercial

nondiscrimination clause language is set forth in, and incorporated into, all the County contracts that result

from Formal Solicitations:

Every contract and subcontract issued shall contain a nondiscrimination clause that reads as

follows:reflect the Commercial Nondiscrimination Policy and contain words that are similar in

meaning to the following:

As a condition of entering into this agreement, the company represents and warrants that it will comply

with the County’s Commercial Nondiscrimination Policy as described in Resolution 2017-1770 as amended.

As part of such compliance, the company shall not discriminate on the basis of race, color, national origin,

religion, ancestry, sex, age, marital status, familial status, sexual orientation, gender identity or expression,

disability, or genetic information in the solicitation, selection, hiring or commercial treatment of subcontractors,

vendors, suppliers, or commercial customers, nor shall the company retaliate against any person for reporting

instances of such discrimination. The company shall provide equal opportunity for subcontractors, vendors

and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities,

provided that nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the

effects of marketplace discrimination that have occurred or are occurring in the County’s relevant marketplace

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in Palm Beach County. The company understands and agrees that a material violation of this clause shall be

considered a material breach of this agreement and may result in termination of this agreement,

disqualification or debarment of the company from participating in County contracts, or other sanctions. This

clause is not enforceable by or for the benefit of, and creates no obligation to, any third party.

All Formal Solicitations issued for County contracts shall require the following certification to

be affirmed by the Respondentshall reflect the Commercial Nondiscrimination Policy and contain

words that are similar in meaning to the following:

The undersigned Rrespondent or bidder hereby certifies and agrees that the following information is

correct:

In preparing its response on this Solicitation, the Rrespondent or bidder has considered all proposals

submitted from qualified, potential Subcontractors and suppliers, and has not engaged in "discrimination" as

defined in the County’s Commercial Nondiscrimination Policy as set forth in Resolution 2017-1770 as

amended, to wit: discrimination in the solicitation, selection or commercial treatment of any Subcontractor,

vendor, supplier or commercial customer on the basis of race, color, national origin, religion, ancestry, sex,

age, marital status, familial status, sexual orientation, gender identity or expression, disability, or genetic

information, or on the basis of any otherwise unlawful use of characteristics regarding the vendor's, supplier's

or commercial customer's employees or owners; provided that nothing in this policy shall be construed to

prohibit or limit otherwise lawful efforts to remedy the effects of discrimination that have occurred or are

occurring in the County’s relevant marketplace of Palm Beach County. Without limiting the foregoing,

"discrimination" also includes retaliating against any person or other entity for reporting any incident of

"discrimination." Without limiting any other provision of the solicitation for responses on this project, it is

understood and agreed that, if this certification is false, such false certification will constitute grounds for the

County to reject the response submitted by the Rrespondent of bidder for this Solicitation, and to terminate

any contract awarded based on the response. As part of its response, the Rrespondent or bidder shall provide

to the County a list of all instances within the immediate past four (4) years where there has been a final

adjudicated determination in a legal or administrative proceeding in the State of Florida that the Rrespondent

or bidder discriminated against its Subcontractors, vendors, suppliers or commercial customers, and a

description of the status or resolution of that complaint, including any remedial action taken. As a condition

of submitting a response to the County, the Rrespondent or bidder agrees to comply with the County’s

Commercial Nondiscrimination Policy as described under Part C, Sec. 2-80.24 of its Purchasing Codein

Resolution 2017-1770 as amended.

Sec. 2-80.25. Factual Predicate and Purpose.

1. This policy is adopted to establish an Equal Business Opportunity Program to remedy the ongoing effects

of identified marketplace discrimination that the County has found continue to adversely affect the

participation of Small/Minority and/or Women Business Enterprises (“S/M/WBE”) in County contracts.

2. In November 2017, the County received and reviewed the Disparity Study Final Report (“the Study”)

conducted by Mason Tillman Associates, Ltd. (“MTA”) on behalf of Palm Beach County (“County”). The

MTA Disparity Study used a variety of methodologies and data sources to undertake a comprehensive

examination of the relevant marketplace for County purchases for the 5-year Study period from January

1, 2009, through December 31, 2013. This Study identified a number of barriers, including various forms

of marketplace discrimination that appear to have undermined the formation, growth, and equitable

participation of minority- and women-owned businesses in County purchases and contracts. Among the

numerous Study findings that form a strong basis in evidence to support adoption of this remedial EBO

Program are the following:

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a) Statistically significant disparities in the award of prime contracts and subcontracts to

M/WBE firms were found in every one of five industry segments examined (i.e.,

Construction, Professional Services, CCNA Professional Services, Goods, and Other

Services). These disparities were calculated in compliance with the constitutional

parameters set forth in City of Richmond v. J.A. Croson (Croson), and its progeny,

and established an inference that marketplace discrimination was affecting market

outcomes. Disparity analysis undertaken within certain smaller dollar thresholds

supported a conclusion that lack of capacity on the part of M/WBE firms did not cause

or account for the identified disparities.

b) Inferences of marketplace discrimination were buttressed by regression analysis of

PUMS data from the relevant geographic market that controlled for a number of

variables in the characteristics of business owners, yet yielded significant disparities

in business earnings despite comparable education levels, experience, credit

worthiness, and age, and also unequal access to capital on the basis of race and

gender. Moreover, regression analysis findings of lower business ownership rates

for minority persons also supported the conclusion that significant private sector

discrimination adversely affected availability of M/WBE firms in the non-remediated

commercial markets in the County.

c) Qualitative evidence gathered from thirty-five in-depth interviews and two public

hearings of M/WBE business owners (and further corroborated by public comments

received during three subsequent Policy Deliberation Stakeholder Sessions held in

July 2018) identified a number of discriminatory barriers adversely affecting the

utilization of ready, willing, and able M/WBE firms. Among these were good old boy

networks, a strong bias in favor of incumbent non-minority firms over similarly

qualified M/WBE firms on the part of County selection panels, ineffectiveness of a

race-neutral SBE program since 2002 in eliminating M/WBE utilization disparities,

active and passive participation by County personnel in commercial discrimination,

disparate treatment in the award of contracts by the County and by its prime

contractors, as well as negative stereotypical attitudes exhibited by some prime

contractors and by some County personnel regarding the capabilities of M/WBE

firms.

3. January 23, 2018, the County’s legal consultant, Franklin Lee, presented to the Board his independent

and in-depth review and critique of the legal defensibility of the Study’s methodologies, data sources, findings,

and recommendations. Based, in part, upon that review and presentation, the Board accepted the Study as

establishing a sufficiently strong basis in evidence for undertaking further policy deliberations regarding its

SBE Program and proposed amendments to that policy.

4. During the month of July 2018, the County convened a series of internal stakeholder sessions with

County procurement and contracting staff, and a series of external stakeholder sessions with local business

stakeholders (large businesses, small businesses, M/WBE, non-M/WBE, and trade association

representatives) representing each industry segment examined in the Study, for purposes of corroborating,

refuting, and supplementing relevant findings from the study, and for purposes of developing legally defensible

policy options to address identified barriers to M/WBE participation to be presented for the Board’s

consideration. Based upon the internal stakeholder and external stakeholder feedback received regarding

the Study findings and recommendations, legal consultant Franklin Lee prepared a Policy Option Matrix

document to summarize the justifications, pros, and cons for various remedial options that were narrowly

tailored to address identified barriers to M/WBE participation in County contracts.

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5. August 14, 2018, the County Board convened a workshop session for purposes of reviewing and

discussing the merits of the Policy Option Matrix developed by legal consultant Franklin Lee. The Policy

Option Matrix reflected a comprehensive menu of legally defensible administrative reforms, race- and gender-

neutral, and race- and gender-conscious remedial policies and program options that were tied to specific

findings in the Study, as well as to the County’s broader factual predicate.

6. In September 2018, a draft of this EBO Ordinance based upon the Policy Option Matrix and

stakeholder feedback was presented to County Staff and to stakeholders for review and public comment. The

Board’s first reading of the Ordinance was then scheduled for October. In October 2018, the Board enacted

this Ordinance.

Sec. 2-80.26. Administrative Reforms.

In furtherance of the objectives of this EBO Program, the County Administrator or designee shall be

responsible for implementing the following procurement policy reforms and non-industry-specific remedies to

address ongoing effects of discrimination that adversely affect M/WBE access to public and private sector

contracting opportunities and that will further facilitate the efficient implementation and successful enforcement

of the EBO Program:

1. Centralized Bidder Registration System / Data Management Enhancements

Establish and maintain a user-friendly automated web-based centralized bidder registration system

capable of tracking availability of all prime and subcontractors interested in performing on County contracts

by industry segment and commodity codes that represent the types of goods and services sold by each

registrant firm, and tracking utilization of registrant firms by the County dollars spent with each firm at the

prime contract and subcontract levels. Registration in this system should be mandatory for every prime

contractor and subcontractor that is ready, willing, and qualified to sell some good or service that the County

purchases, and that wants to be solicited to bid on County contracts or subcontracts, that wants to participate

on County contracts as a prime contractor or subcontractor, and/or that wants to have an invoice processed

and paid by the County for goods and services it has provided on behalf of the County. The CBR should be

fully integrated with the County’s VSS vendor registration system, S/M/WBE certification system, vendor

financial systems, and accounting systems. The CBR system should include capabilities that enable the

Office of EBO to monitor progress on each County contract (including multi-year contracts and change orders)

to determine whether prime contractors are on target to satisfy their S/M/WBE participation commitments, and

to enable appropriate intervention by the County to avoid non-compliance by prime contractors in satisfaction

of S/M/WBE participation commitments. CBR-generated estimates of relative S/M/WBE availability by

commodity code shall be used by the GSC in setting annual and contract-specific SBE and M/WBE

participation Goals. Each CBR bidder profile established by a registrant firm shall be password protected and

accessible to editing of most fields by the registrant firm. CBR registrations shall be subject to mandatory

renewal on a periodic basis. The detailed specifications for the CBR’s functionalities and the fields of

information that it captures (e.g., CBR ID number, registrant firm ethnicity / gender ownership status and

S/M/WBE certification status, prime contractor / subcontractor status, contact info, business and trade

licenses, tax identification numbers, textual descriptions of goods and services sold, primary commodity

codes, and website address) shall be established by the County and posted in the PPM.

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2. Solicitation Review

Each Formal Solicitation issued by the County shall be referred to the Office of EBO and the Director

of Purchasing sufficiently in advance of publication to determine whether it contains any terms, conditions,

contract bundling features, or selection criteria that may unnecessarily restrict competition or adversely impact

the ability of S/M/WBE firms to respond or to participate as subcontractors. If such objectionable terms,

conditions, contract bundling features, or selection criteria (including brand name specifications or onerous

and unreasonable experience requirements) are identified through this review process, the Director of

Purchasing, the Director or designee of the Office of EBO, and the Project Manager for the Originating

Department shall seek consensus in developing an acceptable modification to the Solicitation. In the event

consensus cannot be reached, the County Administrator or designee shall make a final determination

regarding the proposed modifications to the Solicitation. The technical specifications are the responsibility of

the Originating Department.

3. De-bundling / Repackaging of Solicitations

Each Formal Solicitation issued by the County shall be referred to the Office of EBO in advance of

publication to determine whether it contains any specifications requirements that may unnecessarily restrict

competition or adversely impact the ability of S/M/WBE firms to respond or participate as subcontractors. Such

review shall also consider whether it is feasible to de-bundle the contract by reducing the size of the

procurement or contract to maximize participation opportunities for S/M/WBE prime contractors and

subcontractors without imposing undue costs or administrative burdens upon the County. Similarly, such

review shall also consider whether smaller contracts should be aggregated into somewhat larger contract

opportunities that will render such contracts more feasible and profitable for available S/M/WBE firms to

undertake. If such objectionable specifications are identified through this review process, the Director of the

Office of EBO, the Director of Purchasing, and the Director or designee for the Originating Department, shall

seek consensus in developing an acceptable modification to the specification. In the event consensus cannot

be reached, the County Administrator or designee shall make a final determination regarding the proposed

modifications to the specification.

4. Subcontract Remedies (Mobilization / Working Capital / Direct Payments)

The County Administrator or designee, in collaboration with the Director of the Office of EBO and the

Director of Purchasing, and in consultation with the Banking Consortium, shall establish and convene a work

group of County personnel to research, explore, and recommend a variety of options for better addressing the

working capital needs of S/M/WBE firms on County prime contracts and subcontracts. Such options shall

include, but not be limited to, models for providing initial start-up mobilization fees to prime contractors and

subcontractors in advance of first-phase contract performance; revolving working capital funds administered

by third parties; direct payment by County of subcontractor invoices in limited circumstances (with approval of

prime contractors); and assistance with, or facilitation of, equipment or fleet purchases or leases and

acquisition of specialized equipment. The work group should conclude its research and present its findings

and recommendations for consideration by the County Administrator or designee within six month of

enactment of this Ordinance.

5. Uniform Lead Time for Bid Submittals

In the interest of providing a fair opportunity for smaller firms to compete for County contracts, and for

purposes of maximizing competition, absent emergency purchases necessary to protect public health or

safety, all routine Requests for Quotations, Requests for Proposals, and other forms ofFormal Solicitations to

the extent practical shall have a closing date that is at least thirty (30) calendar days after the date such

SSolicitation is issued publicly.

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6. Debriefings for Unsuccessful Respondents or Bidders

For any contract in which the S/M/WBE has submitted a bid or proposal in response to a Formal

Solicitation and subsequent evaluation of responses in accordance with a “Best Value Contracting” method

of procurement, the Director of the department issuing the solicitation, or of the department on whose behalf

the solicitation was issued, or their designees, shall provide a de-briefing to any non-recommended

Respondentrespondent or bidder, upon request. At a minimum, debriefings shall include disclosures of scoring

criteria and scores from the evaluation panel responsible for making the selection for each response that was

evaluated. To the extent possible, the de-briefing should also identify for each non-recommended respondent

or bidder those areas where its submittal was not as competitive as others, with an explanation as to why.

Bid solicitation language and the Office of EBO shall encourage unsuccessful Respondentrespondents or

bidders to avail themselves of such bid-debriefing opportunities.

7. Expedited Payment Program

The County Administrator or designee, in collaboration with the Director of the Office of EBO, the

Palm Beach County Clerk & Comptroller, and the Director of Purchasing, shall establish and convene a work

group of County personnel to research, explore, and recommend a variety of options for accelerating payment

of invoices in ten days or less. Such options shall include consideration of incentives such as acceptance of

percentage discount offers in contractor/vendor invoices that are paid by County within ten or fewer days of

receipt. Streamlining of the invoice approval process shall also be part of the focus of this work group.

Moreover, the work group shall explore the feasibility of inserting clauses into contracts that enable prime

contractors to authorize the County to directly pay undisputed invoices from subcontractors that are over thirty

days old, and to deduct such amounts from the prime contractor’s invoice when other disputes or issues

unrelated to subcontractors’ performance are delaying the County’s payment to the prime. The intent of the

Expedited Payment Program is to attract more respondents or bidders, enhance competition, and obtain lower

prices on behalf of the County and its taxpayers. The work group should conclude its research and present

its findings and recommendations for consideration by the County Administrator by no later than six months

after enactment of this Ordinance.

8. Disputed Invoices – Ten Day Notice Requirement

Within ten days of the County’s receipt of any payment request or invoice from a contractor or vendor,

the County shall notify such contractor or vendor in writing regarding any and all deficiencies in its payment

request or invoice that will prevent prompt processing and issuance of payment. To the extent there is an

undisputed portion of the invoice that can be paid, the County shall proceed with prompt payment of that

portion of the invoice.

9. Re-evaluation of Evaluation Panel Procedures

The County Administrator or designee shall convene a work group comprised of the Director of the

Office of EBO, the Director of Purchasing, and the Directors of each Originating Department for purposes of

revisiting the procedures that are followed during evaluation panel interviews and/or scoring of proposals and

respondent or bidder teams for purposes of vendor selection on best value contracts. Specifically,

consideration should be given to limiting comments on prospective respondents or bidders to persons serving

on the evaluation panels, and also to establishing an opportunity for debriefing and open discussion by

evaluation panel members prior to scoring of proposals and/or respondent or bidder teams that are under

consideration. The intent of this provision is to facilitate more transparency and accountability among

evaluation panel members for the scores that each submits.

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10. Prior Approval of S/M/WBE Subcontractor Substitutions

Upon submittal of any subcontracting plan or any subcontract agreements from a prime contractor to

the County that state the names of proposed S/M/WBE subcontractors and their respective scopes of work,

as well as the prime contractor’s commitment for dollar payments to (and/or percentage utilization of)

S/M/WBE subcontractors for their performance on a specific contract bid, proposal, or contract, the prime

contractor may not substitute any other subcontractor (S/M/WBE or otherwise) for performance of such

scopes of work without obtaining prior written approval for cause for such substitutions from the Office of

EBO.

11. Staff Training re: EBO Program Policies and Procedures

The Office of EBO shall coordinate and provide for annual staff training of key County personnel

regarding the EBO Program OrdinanceEBO Ordinance, policy, and procedures, including, but not limited to,

instruction on the purpose and objectives of the program, and staff responsibilities in implementing the EBO

Program and related procedures.

Sec. 2-80.27. Affirmative Procurement Initiatives.

The Goal Setting Committee shall be established by the County Administrator as defined herein and

shall have the responsibility of evaluating Solicitation documents at least fourteen days in advance of

scheduled posting an advertisement or release of the Solicitation to the public to determine which of the

following industry-specific Affirmative Procurement Initiatives (APIs) shall be applied to a given contract within

a particular industry. After the GSC makes a decision regarding the application of an API, the Director of

Purchasing, in collaboration with the Director of the Office of EBO, and the Office of the County Attorney shall

then be responsible for inserting the appropriate language in each Solicitation to effectuate the application of

the selected API to that Solicitation in advance of its publication and release. The Affirmative Procurement

Initiatives may be considered by the GSC as follows:

1. Construction Industry (Race- and Gender-Neutral Remedies)

a. Bond Waiver and Assistance Programs

The County Administrator or designee shall establish a work group of County personnel to research,

consider, and recommend a variety of “best practice” models from the State of Florida and across the nation

for providing bond waivers and other forms of bonding assistance to S/M/WBE firms. To the extent feasible,

bonds should continue to be waived for contracts below $200,000. In addition, the work group should

research and consider other models that shall include, but not be limited to, technical assistance, Owner

Controlled Insurance Programs (“OCIP”), bond premium cost reimbursements, incremental bonding

requirements for multi-year projects, and bond guarantee programs. The work group shall report its findings

and recommendations to the County Administrator no later than six months following enactment of this

Ordinance.

b. Revised Single Trade Contracting Program for Small ContractsSBE Sheltered Market

for Small Construction Contracts

The County’s program for direct purchases of single trade services shall be revised and expanded

to include informal contracts that are less than $100,000. Contract renewals for such single trade contracts

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shall be limited to two years. As feasible, the County may also assign task orders under such single trade

contracts on a rotating basis to a panel of five or more prequalified SBE firms. The panel shall be re-ordered

in priority periodically from the firm with the least dollars received to firm with the most dollars received. The

County may negotiate price on a time and materials basis for assignment of tasks under this API.

c. Revised Minor Construction Annual Prime Contract Program / SBE Sheltered Market

The County’s Minor Construction Annual Prime Contract Program shall be revised and shall be

limited to prime construction contracts awarded to SBE firms that are valued at five million dollars ($5 million)

or less, and shall have one-year terms with no more than two one-year options for extensions based upon

satisfactory performance. For best value contracts for construction that use alternative delivery methods

(e.g., CM at Risk or Design/Build), this program shall provide for evaluation preferences up to 15% of total

evaluation points based upon SBE participation. Moreover, the Goal Setting Committee may reserve a

subset of small prime contracts valued at or below $100,000 for sheltered market competition solely among

SBEs, or alternatively, the GSC may reserve Decentralized Purchase Order contracts that are valued below

$5,000 for placement in a sheltered market where only certified SBEs are eligible to submit bids or quotes.

Size standards for participating SBE construction prime contractors shall be established in accordance with

Exhibit Q in the PPM. The Goal Setting Committee may reserve small prime construction contracts (single

trade or multi-trade) valued at or below $100,000 for sheltered market competition solely among SBEs where

only certified SBEs are eligible to submit bids or quotes. Size standards for participating SBE construction

prime contractors (either single trade or multi-trade) shall be established in the EBO PPM.

d.c. SBE Subcontracting Program

Under this API, the County establishes a minimum mandatory goal of 20% SBE participation for

County contracts, provided that the Office of EBO shall agree to a reasonable reduction or waiver of this goal

in instances where it can be factually demonstrated that there is inadequate availability of SBE prime and/or

subcontractor firms qualified to perform Commercially Useful Functions that are valued at 20% of the total

estimated dollar value of the County contract. Prospective respondents or bidders shall be provided an

adequate opportunity to formally request such waivers at least seven (7) days prior to bid opening based

upon submission of adequate Good Faith Efforts documentation as specified by the Office of EBO and as

stated in bid solicitation language.

Factors to be considered by the GSC in making this determination shall include the relative availability

of SBE firms to perform Commercially Useful Functions on the specific contract.

A prospective Respondentrespondent or bidder, to a County Solicitation for which price and scope

are defined, shall submit at the time as required in the Solicitation such documentation as required by the

Office of EBO that provides:

i. The name(s) of the SBE Subcontractor(s) it intends to use on the project;

ii. The percentage of prime contract dollars and the absolute dollar value of subcontracting

services to be provided by each SBE;

iii. A description of the work that each SBE Subcontractor shall perform; and

iv. Documentation confirming the Subcontractor’s commitment to perform the work at the stated

price.

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A prospective Rrespondent or bidder on a County Solicitation for which Respondents are not initially

evaluated based on price, or for which the project scope is not predefined, shall submit as required in the

solicitation such documentation as required by the Office of EBO to affirm its intent to meet the subcontracting

requirements indicated in the Solicitation. Failure of a Respondent respondent or bidder to commit as required

in the solicitation to satisfying the SBE subcontracting goal shall render its response non-responsive.

During the price proposal negotiation phase, Respondents respondents or bidders shall be required

to submit:

i. Subcontractor(s) it intends to use on the project;

ii. The percentage of prime contract dollars and the absolute dollar value of subcontracting

services to be provided by each SBE;

iii. A description of the work that each SBE Subcontractor shall perform; and

iv. Documentation confirming the Subcontractor’s commitment to perform the work at the stated

price.

A Respondent respondent or bidder may request a full or partial waiver of this mandatory

subcontracting requirement for good cause by submitting the appropriate form(s) and documentation at the

time as required in the Solicitation. Under no circumstances shall a waiver of a mandatory subcontracting

requirement be granted without submission of adequate documentation of Good Faith Efforts by the

Respondent respondent or bidder and careful review by the Office of EBO. The Office of EBO shall base its

determination of a waiver request on criteria such as, but not limited to:

i. Whether the requestor of the waiver has made Good Faith Efforts to subcontract with

qualified and available SBEs;

ii. Whether subcontracting would be inappropriate and/or not provide a “Commercially Useful

Function” under the scope of the contract; and

iii. Whether there are no certified SBE firms that are qualified and available to provide the goods

or services required.

In the absence of a waiver granted by the Office of EBO, failure of a Prime Contractor to commit as

required in the Solicitation to satisfying the SBE subcontracting goal shall render its response non-

Responsive. Provided, however, that on any prime contract valued under $10 million, if the Prime Contractor

is a certified SBE firm, then the Prime Contractor is allowed to self-perform up to the entire SBE

subcontracting goal amount with its own forces. To the extent that the certified SBE Prime Contractor does

not self-perform a portion of the SBE subcontracting goal, it shall be responsible for complying with all other

requirements of this API for that portion of work that is subcontracted. This self-performance option for

certified SBE Prime Contractors may be suspended at the discretion of the Director of the Office of EBO or

designee in the event it determines that the adverse cumulative effect of the use of this self-performance

option upon subcontractor opportunities is too great.

In the absence of a waiver granted by the Office of EBO or the self-performance of a portion or all of

the SBE subcontracting goal by a certified SBE Prime Contractor, the failure of a Prime Contractor to attain

a subcontracting goal for SBE participation in the performance of its contract or otherwise comply with the

provisions of this API shall be considered a material breach of contract, grounds for termination of that

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contract with the County, and shall be subject to any penalties and sanctions available under the terms of the

EBO Program, its contract terms with the County, or by law.

A Prime Contractor is only permitted to substitute another subcontractor for a designated SBE

subcontractor for cause, and is required to notify and obtain prior written approval from the Office of EBO in

advance of any such substitution of a designated SBE subcontractor, or reduction in subcontract scope,

unless such reduction in scope is the direct and immediate result of a County-mandated change order or

contract amendment, or the County has mandated the de-Certificationdecertification, suspension,

debarment, graduation or termination of a designated SBE Subcontractor. However, under such

circumstances, the Prime Contractor shall undertake Good Faith Efforts to replace the de-certifieddecertified,

suspended, debarred, graduated or terminated SBE with one or more other certified SBE Subcontractors and

shall submit a post-contract award waiver request to the Office of EBO in the event such Good Faith Efforts

are unsuccessful.

Upon award of the prime contract to a Respondentrespondent or bidder, the Prime Contractor shall

be required to submit accurate progress payment information with each invoice regarding each of its

Subcontractors, including SBE Subcontractors. The Originating Department shall audit the reported

payments to SBE and non-SBE Subcontractors to ensure that the Prime Contractor’s reported subcontract

participation is accurate. County contracts with Prime Contractors shall include clauses requiring Prime

Contractors to pay Subcontractors in compliance with Florida prompt payment laws, and such clauses shall

mandate that in the event of a Prime Contractor’s non-compliance regarding such payments, the Prime

Contractor shall be subject to any penalties and sanctions available under the terms of the EBO Program

OrdinanceEBO Ordinance, its contract terms with the County, or by law.

e.d. SBE Mentor-Protégé Program

The County Administrator shall establish a work group of County personnel and construction industry

and surety industry stakeholders to research, consider, and recommend a variety of “best practice” models

from the State of Florida and across the nation for mentor-protégé programs to facilitate the successful growth

and competitive viability of S/M/WBE firms in the construction industry. Such models for purposes of research

and consideration shall include, but not be limited to, programs that team up more established and successful

construction firm mentors with less established SBE firms for purposes of providing management guidance

and training; programs that provide incentives to mentor firms by reserving certain contracts for competition

upon approved mentor-protégé teams; and also programs that provide other incentives to mentor-protégé

teams such as accelerated payments, access to working capital funds, and direct purchasing of supplies by

County on behalf of mentor-protégé teams. The work group shall report its findings and recommendations

to the County Administrator no later than six months after enactment of this Ordinance.

e. SBE Price Preference

For construction contracts where there are no opportunities for subcontracting (i.e. single trade), the

GSC may include a provision requiring awards of the contract to be made to the lowest responsive,

responsible respondent or bidder unless a certified SBE’s bid is within the ten (10) percent of the lowest non-

small business bid, in which case the award shall be made to the certified small business respondent or

bidder submitting the lowest responsive, responsible bid at the price that it bid.

2. Construction Industry (Race- and Gender-Conscious Remedies)

The Goal Setting Committee (GSC) shall consider establishment of an overall M/WBE Annual

Aspirational Goal in accordance with subsection ‘a’ below and, in addition, shall review each prospective

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County Construction Formal Solicitation in advance of its public release and advertisement, and shall make

a determination whether to apply any of the other Race-Conscious APIs to those Construction solicitations

based upon the following criteria:

i. Whether the most recent data on M/WBE utilization in the absence of Race-Conscious APIs indicate

that Construction contracts of this type have exhibited significant disparities in the utilization of

available M/WBE Subcontractors and/or M/WBE Prime Contractors;

ii. Whether race- and/or gender-neutral remedies alone are likely to fully eliminate any such disparities

in the utilization of M/WBE Subcontractors and/or M/WBE Prime Contractors based upon past

contract Award and Payment data;

iii. Whether a particular API is the least burdensome available remedy to non-M/WBE Respondents

respondents or bidders that is narrowly-tailored and that can effectively eliminate the disparities in

the utilization of M/WBEs in Construction contracts; and

iv. Whether the particular API is appropriate for the specific type of Construction contract being procured.

Whenever the GSC uses its discretion to apply any of the following Race-Conscious APIs to Construction

solicitations, it shall provide an explanation in the solicitation documents of its reasons for doing so based

upon its determinations pursuant to these criteria. In making such determinations, the GSC may also take

into consideration the experiences of other jurisdictions within Palm Beach County for Construction

services.

a. Annual Aspirational Goals

For each fiscal year, the GSC shall establish non-mandatory annual aspirational percentage goals

for overall M/WBE prime and subcontract participation on County Construction contracts.

The Annual Aspirational Goals for M/WBE prime contract participation in County Construction

contracts have initially been established at 28% MBE and 13% WBE respectively of the total cumulative

construction prime contract dollars to be awarded and spent on an annual basis, and at 24% MBE and 14%

WBE respectively of the total cumulative construction subcontract dollars to be awarded and spent on an

annual basis. These annual aspirational goals are based upon the M/WBE availability estimates by industry

set forth in accordance with the County’s 2017 Disparity Study findings.

Each Annual Aspirational Goal is to be reviewed on an annual basis for potential adjustment by the

GSC based upon the M/WBE availability by industry segment in accordance with the County’s 2017 Disparity

Study findings, along with relative M/WBE availability data to be collected by the County through its CBR

system, and the actual utilization of M/WBEs reflected therein.

Annual Aspirational Goals shall not to be routinely applied to individual solicitations, but are intended

to serve as a benchmark against which to measure the overall effectiveness of the EBO Program on an

annual basis in addressing identified disparities, and to gauge the need for future adjustments to the mix and

aggressiveness of remedies and APIs being applied pursuant to this EBO Program OrdinanceEBO

Ordinance.

Annual Aspirational Goals may be stated only in those County bid solicitations that do not contain

contract-specific S/M/WBE goals, and when provided, shall be advisory only, and must also be accompanied

by the full definition of the term as stated in this EBO Program OrdinanceEBO Ordinance.

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b. M/WBE Subcontracting Goals

The GSC may, on a contract-by-contract basis, require that a predetermined percentage of a specific

Construction contract, up to 40%, be subcontracted to eligible M/WBEs (i.e., certified M/WBE firms owned by

African-Americans, Hispanic-Americans, Asian-Americans, Native Americans, and non-minority women).

Factors to be considered by the GSC in making this determination shall include the relative availability of

M/WBE firms to perform Commercially Useful Functions on the specific contract weighted according to the

relative dollar value of the construction sub-specialties available for subcontracting.

A prospective respondent or bidder on a County solicitation, for which price and scope are defined,

shall submit at the time as required in the solicitation such documentation as required by the County that

provides:

i. The name(s) of the M/WBE Subcontractor(s) it intends to use on the project;

ii. The percentage of prime contract dollars and the absolute dollar value of subcontracting

services to be provided by each M/WBE;

iii. A description of the work that each M/WBE Subcontractor shall perform; and

iv. Documentation confirming the Subcontractor’s commitment to perform the work at the stated

price.

A prospective Respondent respondent or bidder to a County solicitation, for which Respondents are

not initially evaluated based on price, or for which project scope is not predefined, shall submit at the time as

required in the solicitation such documentation as required by the County to affirm its intent to meet the

subcontracting requirements indicated in the solicitation. In the absence of a waiver granted by the Office of

EBO, failure of a Respondent respondent or bidder to commit as required in the solicitation to satisfying the

M/WBE subcontracting goal shall render its response non-responsive.

During the price proposal negotiation phase, Respondents respondents or bidders shall be required

to submit:

i. The name(s) of the M/WBE Subcontractor(s) it intends to use on the project;

ii. The percentage of prime contract dollars and the absolute dollar value of subcontracting

services to be provided by each M/WBE; and

iii. A description of the work that each M/WBE Subcontractor shall perform.

A Respondent respondent or bidder may request a full or partial waiver of this mandatory

subcontracting requirement for good cause by submitting the appropriate form(s) and documentation at the

time as required in the Solicitation. Under no circumstances shall a waiver of a mandatory subcontracting

requirement be granted without submission of adequate documentation of Good Faith Efforts by the

Respondent respondent or bidder and careful review by the Office of EBO. The Office of EBO shall base its

determination on a waiver request on criteria such as, but not limited to:

i. Whether the requestor of the waiver has made Good Faith Efforts to subcontract with

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qualified and available M/WBEs;

ii. Whether subcontracting would be inappropriate and/or not provide a “Commercially Useful

Function” under the scope of the contract; and

iii. Whether there are no certified M/WBE firms that are qualified and available to provide the

goods or services required.

In the absence of a waiver granted by the Office of EBO, failure of a Prime Contractor to commit as

required in the solicitation to satisfying the M/WBE subcontracting goal shall render its response non-

Responsive. Provided, however, that on any prime contract valued under $10 million, if the Prime Contractor

is a certified M/WBE firm, then the Prime Contractor is allowed to self-perform up to the entire M/WBE

subcontracting goal amount with its own forces. To the extent that the certified M/WBE Prime Contractor

does not self-perform a portion of the M/WBE subcontracting goal, it shall be responsible for complying with

all other requirements of this API for that portion of work that is subcontracted. This self-performance option

for certified M/WBE Prime Contractors may be suspended at the discretion of the Director of the Office of

EBO in the event he or she determines that the adverse cumulative effect of the use of this self-performance

option upon subcontractor opportunities is too great.

In the absence of a waiver granted by the Office of EBO, or the self-performance of a portion or all

of the M/WBE subcontracting goal by a certified M/WBE Prime Contractor, the failure of a Prime Contractor

to attain a subcontracting goal for M/WBE participation in the performance of its contract or otherwise comply

with the provisions of this API shall be considered a material breach of contract, grounds for termination of

that contract with the County and shall be subject to any penalties and sanctions available under the terms

of the EBO Program, its contract with the County, or by law.

A Prime Contractor is required to notify and obtain prior written approval from the Director of the

Office of EBO in advance of any reduction in subcontract scope, unless such reduction in scope is the direct

and immediate result of a County-mandated change order or contract amendment, or the County has

mandated the de-Certificationdecertification, suspension, graduation or termination of a designated M/WBE

Subcontractor, However, under such circumstances, the Prime Contractor shall undertake Good Faith

Efforts to replace the de-certifieddecertified, suspended, graduated or terminated M/WBE Subcontractor(s)

with one or more other certified M/WBE Subcontractor(s) and shall submit a waiver request to the Office of

EBO in the event such Good Faith Efforts are unsuccessful.

Upon award of the prime contract to a Respondentrespondent or bidder, the Prime Contractor shall

be required to submit accurate progress payment information with each invoice regarding each of its

Subcontractors, including S/M/WBE Subcontractors. The Originating Department shall audit the reported

payments to S/M/WBE and non-S/M/WBE Subcontractor to ensure that the Prime Contractors’ reported

subcontract participation is accurate. Absent a waiver from the Office of EBO, a Prime Contractor’s failure to

reach the required level of S/M/WBE subcontracting shall be considered a material breach of contract. County

contracts with Prime Contractors shall include clauses requiring Prime Contractors to pay Subcontractors in

compliance with Florida Prompt Payment Law, and such clauses shall mandate that in the event of Prime

Contractor non-compliance regarding such payments, the Prime Contractor shall be subject to any penalties

and sanctions available under the terms of the EBO Program, its contract with the County, or by law.

c. M/WBE Segmented Subcontracting Goals

Under this API, the GSC may establish M/WBE Segmented Subcontracting Goals on an individual

County contract wherein an overall combined M/WBE goal is accompanied by subsets of one or more smaller

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goals that specifically target the participation of a particular segment of Minority Group Member segments or

the WBE segment based upon that segment’s relative availability. Such segmented goals shall specifically

target the participation of a particular segment of business enterprises owned and controlled by women or

certain Minority Group Members (e.g., African-Americans, Hispanic-Americans, Asian-Americans, or Native

Americans) based upon relative availability, as well as the existence of consistently and significantly greater

patterns of underutilization and disparity within an industry as compared to other gender and Minority Group

Member categories of M/WBEs. (For example, if an overall M/WBE subcontracting goal is set at 38% on a

given contract, the segmented subcontracting goal may require that at least 23% of that 38% shall be satisfied

through the utilization of African-American and Hispanic-American subcontractors.) The application of

Segmented M/WBE Subcontracting Goals is intended to ensure that those segments of M/WBEs that have

been most significantly and persistently underutilized receive a fair measure of remedial assistance. In all

other respects, M/WBE Segmented Subcontracting Goals shall operate in the same manner as the M/WBE

Subcontracting Goals set forth in this EBO Program.

d. M/WBE Joint Venture / Partnership / Teaming Incentive

Under this API, for contracts valued at greater than $2.5 million, the GSC may establish incentives

to promote joint ventures, partnerships, or teaming arrangements between larger established firms and

M/WBE firms, or between and among SBE and M/WBE firms. For “best value” contracts wherein low price

is not the only criterion for award, the incentive may be for up to twenty percent (20%) of one hundred

evaluation points to be reserved for qualifying M/WBE joint ventures wherein the certified M/WBE joint venture

partner owns 50% or greater, and performs 50% or greater of the work, of the overall joint venture.

Proportionately fewer evaluation preference points would be awarded to the joint venture based upon lesser

percentages of ownership by the M/WBE partner. Alternatively, incentives may include bonding assistance,

assignment of multiple task orders on job order contracts totaling up to $2.5 million in value, and accelerated

payments or mobilization payments to be afforded to qualifying M/WBE joint ventures. This API should be

reserved for those occasions wherein there are sufficient numbers of qualified M/WBE firms available of

sufficient size to meaningfully joint venture or partner for purposes of performing larger contracts. Another

consideration for application of this API is whether there are larger non-local M/WBE firms, or larger M/WBE

firms that may have graduated from eligibility for the program, that are available and willing to joint venture

with certified smaller local M/WBEs for purposes of enhancing local capacity at the prime contract level.

A prospective M/WBE joint venture Respondent respondent or bidder on such County contracts shall

submit in response to the solicitation such documentation as required by the County that includes, but is not

limited to:

i. The names of the M/WBE joint venture, partnership, or team and each of its partners or team

members that will participate on the contract;

ii. The percentage of Prime Contract dollars and the absolute dollar value of the services to be

provided by the M/WBE joint venture partner or team member; and

iii. A description of the work, management responsibilities, and other contributions that each

joint venture partner or team member shall perform or provide under the terms of its joint

venture, partnership, or teaming agreement.

e. M/WBE Mentor-Protégé Program

The County Administrator or designee shall establish a work group of County personnel and construction

industry and surety industry stakeholders to research, consider, and recommend a variety of “best practice”

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models from the State of Florida and across the nation for mentor-protégé programs to facilitate the successful

growth and competitive viability of S/M/WBE firms in the construction industry. Such models for purposes of

research and consideration shall include, but not be limited to, programs that team up more established and

successful construction firm mentors with less established M/WBE firms for purposes of providing

management guidance and training; programs that provide incentives to mentor firms by reserving certain

contracts for competition upon approved mentor-protégé teams; and also programs that provide other

incentives to mentor-protégé teams such as accelerated payments, access to working capital funds, and direct

purchasing of supplies by County on behalf of mentor-protégé teams. The work group shall report its findings

and recommendations to the County Administrator no later than six months after the effective date of this

Ordinance.

f. M/WBE Evaluation Preference for “Best Value” RFPs

The GSC may apply this API to Formal Solicitations for County bid solicitations that are issued

pursuant to a “Best Value” method of procurement wherein criteria other than price are factored into the

selection process. Under the terms of this Evaluation Preference, the GSC shall require that evaluation panels

assign point preferences equal to up to 15% of the total points assigned for the evaluation, scoring and ranking

of construction-related proposals submitted by those certified M/WBE firms.

An M/WBE that is awarded a prime contract under this program may not subcontract more than 49%

of the contract value to a non-S/M/WBE firm. In determining whether a particular contract is eligible for this

Program, the GSC shall consider: (a) the relative availability of S/M/WBEs, with the preference of at least

three S/M/WBEs that are likely to bid as a Prime Contractor for the contract; and (b) the degree of

underutilization of the S/M/WBEs in the specific Industry Categories.

3. Professional Services (Race- and Gender-Neutral Remedies)

a. SBE Vendor Rotation

Under this API, there are two options for the selective use of a prequalified panel of SBE vendors by

the County:

Option 1

For smaller County non-CCNA professional services contracts valued at less than $100,000, a prequalified

panel of SBE professional services firms may be assigned work tasks on a rotating basis. Periodically, the

SBE Vendor Rotation list shall be re-ordered according to the firm with the least amount of dollars received

to the most dollars received from the County based upon the cumulative dollars received within the past year.

Option 2

When the County requires price competition in its solicitations, and when quotations from several firms are

required before award of contracts valued at less than $100,000, solicitations for price quotations shall be

affirmatively and directly sought from the next three firms appearing in the SBE Vendor Rotation list of

prequalified firms for that type of professional service prior to contract award. With each successive

solicitation of quotations of this type, the list shall be rotated to the next group of three SBE vendors appearing

in the rotation.

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b. Evaluation Preference for New SBE Prime Respondents or Bidders

Under this API, the GSC shall establish point preferences in the evaluation of proposals for those

first-time SBE entrants that are competing for County Professional Services contracts for up to one-year after

submission of an SBE prime respondent’s or bidder’s first successful proposal with the County, or until the

firm has received a cumulative total of $1,000,000 or more in payments for services performed on behalf of

the County (whichever period of time is longer). Up to 15 percent (15%) of the total number of evaluation

points allocated for selection of a professional services firm by the County shall be reserved for SBE prime

respondents or bidders that have only received their first contract award with the County within the past year,

or have not yet received a cumulative total of $1,000,000 or more in payments from the County for

professional services rendered. One year after a new entrant SBE prime respondent or bidder has won its

first County contract, assuming it has received a cumulative total of $1,000,000 or more in payments from

the County, it shall no longer be eligible to receive such evaluation preference points for new SBE prime

respondent or bidders, but may remain eligible to receive other evaluation preference points reserved for

SBE prime respondents or bidders that are not new. This API is intended to address the natural bias that

has been identified on the part of some selection panels against smaller firms that are unknown and that have

no significant prior track record with the County.

c. SBE Reserve for Contracts Up to $5,000 and Required SBE Quotations on Informal

Solicitations for non-CCNA Professional Services

Under this API, the GSC may reserve certain categories of small professional services contracts

valued at less than $5,000 exclusively for competition among SBE professional services firms. For larger

non-CCNA professional services contracts valued below $100,000, the GSC shall require at least two to three

quotations or proposals be affirmatively solicited directly from SBE professional services firms before the

County may make an award. In selecting the use of this API, the GSC shall consider whether the County

has had difficulty in obtaining prime contract bids or proposals from available SBE firms for that type of

professional services contracts.

d. SBE Evaluation Preference for Prime Bidders

Under this API, there are two options available for the GSC to enhance contract opportunities for

SBE Prime Bidders on “Best Value” professional services contracts where low bid price is not the only

consideration in contract award:

Option 1

An SBE evaluation preference of up to 15 percent (15%) of the total number of available evaluation points

for scoring of proposals shall be reserved for all SBE prime bidders on County non-CCNA professional

services contracts valued at less than $500,000.

Option 2

Evaluation preference points shall be awarded on a sliding scale from zero up to 15 percent (15%) of the total

available evaluation points for scoring of proposals to those firms bidding on non-CCNA responding to

Professional ServicesProfessional Services contracts solicitations valued at $500,000 or greater. The sliding

scale shall be based upon the relative level of SBE dollar participation that has been committed to on the

prime respondent/bidder’srespondent’s or bidder’s team (e.g., zero SBE participation on a prime

respondent/bidder’srespondent’s or bidder’s team shall yield zero evaluation points, whereas the maximum

SBE participation among all prime bidders, at the prime contract and subcontract levels combined, shall yield

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award of fifteen evaluation preference points out of 100; and a prime respondent/bidder’srespondent’s or

bidder’s team that achieves only half as many dollars in SBE participation as the firm with the greatest SBE

dollar participation at the prime contract and subcontract levels combined shall be awarded 7.5 evaluation

points out of 100).

e. SBE Subcontracting Goals for Professional Services

The Board has established a minimum mandatory goal of 20% SBE participation for County

contracts, provided that the Office of EBO shall agree to a reasonable reduction or waiver of this goal in

instances where it can be factually demonstrated that there is inadequate availability of SBE prime and/or

subcontractor firms qualified to perform Commercially Useful Functions that are valued at 20% of the total

estimated dollar value of the County contract. Prospective bidders shall be provided an adequate opportunity

to formally request such waivers prior to bid opening based upon submission of adequate Good Faith Efforts

documentation as specified by the Office of EBO and as stated in Solicitation language.

Under this API, the GSC shall, on a contract-specific basis, require that at least twenty percent (20%)

of the total value of a prime contract be subcontracted to eligible SBEs. Factors to be considered by the GSC

in making this determination shall include the relative availability of SBE firms to perform Commercially Useful

Functions on the specific contract.

A prospective Respondentrespondent or bidder, to a County Solicitation for which price and scope

are defined, shall submit at the time as required in the solicitation such documentation as required by the

Office of EBO that provides:

i. The name(s) of the SBE Subcontractor(s) it intends to use on the project;

ii. The percentage of prime contract dollars and the absolute dollar value of subcontracting

services to be provided by each SBE;

iii. A description of the work that each SBE Subcontractor shall perform; and

iv. Documentation confirming the Subcontractor’s commitment to perform the work at the stated

price.

A prospective Respondent respondent or bidder on a County Solicitation for which Respondents

respondents or bidders are not initially evaluated based on price, or for which the project scope is not

predefined, shall submit as required in the solicitation such documentation as required by the Office of EBO

to affirm its intent to meet the subcontracting requirements indicated in the solicitation. Failure of a

Respondent respondent or bidder to commit as required in the solicitation to satisfying the SBE

subcontracting goal shall render its response non-responsive.

During the price proposal negotiation phase, Respondents respondents or bidders shall be required

to submit:

i. The name(s) of the SBE Subcontractor(s) it intends to use on the project;

ii. The percentage of prime contract dollars and the absolute dollar value of

subcontracting services to be provided by each SBE;

iii. A description of the work that each SBE Subcontractor shall perform; and

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iv. Documentation confirming the Subcontractor’s commitment to perform the work at

the stated price.

A Respondent respondent or bidder may request a full or partial waiver of this mandatory

subcontracting requirement for good cause by submitting the appropriate form(s) and documentation at the

time as required in the Solicitation. Under no circumstances shall a waiver of a mandatory subcontracting

requirement be granted without submission of adequate documentation of Good Faith Efforts by the

Respondent respondent or bidder and careful review by the Office of EBO. The Office of EBO shall base its

determination of a waiver request on criteria such as, but not limited to:

i. Whether the requestor of the waiver has made Good Faith Efforts to subcontract

with qualified and available SBEs;

ii. Whether subcontracting would be inappropriate and/or not provide a “Commercially

Useful Function” under the scope of the contract; and

iii. Whether there are no certified SBE firms that are qualified and available to provide

the goods or services required.

In the absence of a waiver granted by the Office of EBO, failure of a Prime Contractor to commit as

required in the solicitation to satisfying the SBE subcontracting goal shall render its response non-

Responsive. Provided, however, that on any prime contract valued under $10 million, if the Prime Contractor

is a certified SBE firm, then the Prime Contractor is allowed to self-perform up to the entire SBE

subcontracting goal amount with its own forces. To the extent that the certified SBE Prime Contractor does

not self-perform a portion of the SBE subcontracting goal, it shall be responsible for complying with all other

requirements of this API for that portion of work that is subcontracted. This self-performance option for

certified SBE Prime Contractors may be suspended at the discretion of the Director of the Office of EBO or

designee in the event he or she determines that the adverse cumulative effect of the use of this self-

performance option upon subcontractor opportunities is too great.

In the absence of a waiver granted by the Office of EBO or the self-performance of a portion or all of

the SBE subcontracting goal by a certified SBE Prime Contractor, the failure of a Prime Contractor to attain

a subcontracting goal for SBE participation in the performance of its contract or otherwise comply with the

provisions of this API shall be considered a material breach of contract, grounds for termination of that

contract with the County, and shall be subject to any penalties and sanctions available under the terms of the

EBO Program OrdinanceEBO Ordinance, its contract terms with the County, or by law.