|
City of Cleveland Codified Ordinances, Chapter #187
PART ONE — ADMINISTRATIVE CODETitle XV — Purchases And ContractsChapter 187 — Minority Business and Female Business Enterprise CodeComplete to June 30, 2007
CROSS REFERENCES
Civil Rights Commission, RC Ch 4112
Office of Equal Opportunity, CO 123.08
As used in this chapter, the following words, phrases and terms shall be defined as set forth below:
(a) "Administrator" means either the administrator of the Minority Business Enterprise program or of the Female Business Enterprise program of the Office of Equal Opportunity.
(b) "Business Enterprise Code," "Code" or "Chapter" means all the provisions of this Chapter 187 of the Codified Ordinances of the City of Cleveland.
(c) "City" means the City of Cleveland, Ohio.
(d) "Cleveland contracting market" means the geographic market area consisting of Cuyahoga, Summit, Lake and Lorain counties.
(e) "Construction" means the erection, rehabilitation, alteration, conversion, extension, demolition or repair of improvements to real property, including facilities providing utility service and includes the supervision, inspection, and other on-site functions incidental to construction.
(f) "Contract" means a binding agreement executed on or after the effective date of the Minority Business Enterprise Code whereby the City either grants a privilege or is committed to expend or does expend its funds or other resources for or in connection with the following purposes:
(1) Construction of any public improvement, including change orders or subsidiaries approved by the City during the performance of such construction;
(2) Purchase of personal property;
(3) Purchase of any services;
(4) Lease of any personal property; or
(5) Concession agreements whereby the City grants a specific permission, privilege or license in accordance with Section 188.04 and Section 188.041 of the Codified Ordinances of the City.
"Contract" shall not mean contracts with other public entities, except as provided in division (h) of Section 187.03.
(g) "Contracting department" means any administrative department under charge of the mayor or any office, board or commission treated or construed as a department of City government for any purpose pursuant to the Charter or ordinances of the City.
(h) "Contractor" means a separate or distinguishable businesses entity employing five or more persons and participating or seeking to participate in the performance of a contract, including but not limited to minority business enterprises and female business enterprises where applicable.
(i) "Control" means the unencumbered ability to direct operations and management.
(j) "Director" means the Director of the Office of Equal Opportunity.
(k) "Disability" means any physical or mental impairment that substantially limits one or more of an individual's major activities.
(l) "Discriminate" means to exclude an individual or group solely on the basis of race, religion, color, sex, sexual orientation, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status.
(m) "Discriminate on the basis of age" means to discriminate, as determined by appropriate Federal law, against individuals over the age of forty (40).
(n) "Female Business Enterprise" or "FBE" means a sole proprietorship, partnership, or corporation owned, operated, and controlled by one or more females who have fifty one percent (51%) ownership. The one or more females must have operational and managerial control, interest in capital, and earnings commensurate with the percentage of female ownership. To qualify as a female business enterprise, the enterprise shall be located and doing business in the Cleveland contracting market.
(o) "Joint venture" means an association of two 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.
(p) "Minority" means a United States citizen or lawful, permanent resident who is Black, Hispanic, Asian-American or Native American.
(q) "Minority Business Enterprise" or "MBE" means a sole proprietorship, partnership, or corporation owned, operated and controlled by one or more minority persons who have at least fifty one percent (51%) ownership. The minority person(s) must have operational and managerial control, interest in capital, and earnings commensurate with the percentage of ownership. To qualify as a minority business enterprise, the enterprise shall be located and doing business in the Cleveland contracting market.
(r) "Front Organization" means any Female Business Enterprise or Minority Business Enterprise that serves as a Contractor to the City, or as a subcontractor to any Contractor under contract with the City, who obtained and/or retained certification through false statements or who committed to performance of a distinct element of the work under the contract but, did not carry out its responsibilities by actually performing, managing or supervising the work involved, or who did not provide products, services, goods or supplies in a manner, in the Director's determination, consistent with its certification.
(Ord. No. 1029-03. Passed 6-10-03, eff. 6-12-03)
In addition to those duties specified in Section 123.08 of the Codified Ordinances of the City, the Director, through the Administrator and such other employees as are necessary, shall implement and enforce this Code in accordance with his duties hereunder. The Director's duties shall include, but not be limited to:
(a) Reviewing all submittals and other information required by this Code to determine whether particular contractors have been certified or are certifiable:
(1) With respect to the Code's employment goals established pursuant to subsections 187.04(b)(1) and (2);
(2) As a minority business enterprise or a female business enterprise;
(3) As a bona fide joint venture;
(4) As having submitted a bona fide bid; or
(5) As being in compliance with this Code and its regulations.
(b) Reviewing all information supplied under this Code and notifying the affected contracting department that the certificates of particular contractors are or are not in full force and effect with respect to the matters for which the same were issued.
(c) Implementing the hearing procedures provided in Section 187.08 and 187.09.
(d) Monitoring the general performance, workforce, and subcontracting practices of contractors to ensure continued compliance with this Code; and
(e) Investigating complaints pertaining to noncompliance with this Code and recommending appropriate sanctions.
(Ord. No. 1660-85. Passed 2-10-86, eff. 2-12-86)
(a) In accordance with the City's goal of increasing the level of MBE and FBE participation in City contracts, each contracting department shall use its best efforts to utilize certified MBEs and FBEs as contractors or subcontractors for all contracts in excess of ten thousand dollars ($10,000). The Director shall determine the appropriate annual City-wide goal for MBE and FBE participation for each type of City contract, such as construction, services, professional services, supplies and concessions, and for each type of work to be performed in a particular contract, based on the availability of certified MBEs and FBEs in the Cleveland contracting market and within the following range of annual goals fixed by the Council:
(1) The annual goals for MBE participation shall range from fifteen percent (15%) to thirty percent (30%);
(2) The annual goals for FBE participation shall range from five percent (5%) to twenty percent (20%).
The goal for MBE and FBE participation in a particular contract shall be fixed by the Director in consultation with the contracting department based upon the annual City-wide goals for each type of City contract and for each type of work to be performed in the contract and the availability of certified MBEs and FBEs within the Cleveland contracting market, provided however that the goal for a particular contract may exceed the range of goals fixed by the Council in order to assist the contracting department in meeting the annual City-wide goal for the type of contract to be awarded.
(b) Contracting departments shall consider utilization of certified MBEs and FBEs when recommending a lowest and best or lowest responsible bid in order to meet the specified annual goals. However, these goals are not intended as quotas. It shall be the responsibility of each contracting department to ensure that bids or proposals emanating from that department adhere to the procedures and provisions in this chapter.
(c) MBE and FBE participation shall be counted toward meeting MBE and FBE goals under the following provisions:
(1) Only expenditures to certified MBEs and FBEs that perform commercially useful functions in the implementation or performance of a contract may be counted toward meeting MBE and FBE goals. A MBE or FBE is considered to perform a commercially useful function when it is responsible for executing a distinct element of the work in carrying out its responsibilities by actually performing, managing, and supervising the work involved. To determine whether a MBE or FBE is performing a commercially useful function, the City will evaluate the amount of the contractor's work which is subcontracted, industry practices, and other relevant factors.
(2) A contractor or subcontractor who qualifies as both a MBE and FBE may obtain certification as both a MBE and FBE. The total dollar value of a particular contract with such contractor or subcontractor may be counted toward either the minority goal or the goal for females, but not toward both. The contractor must choose the category to which the contract value should be applied.
(3) A portion of the total dollar value of the contract with a joint venture equal to the percentage of certified MBE or FBE participation in the joint venture may be counted toward meeting MBE and FBE goals. The MBE or FBE must be responsible for performance of a clearly defined portion of the work to be performed, of equal proportion to its share in the ownership, control, management, responsibility, risk, and profits of the joint venture.
(4) The entire amount of expenditure to a certified MBE or FBE manufacturer (i.e., a supplier that produces goods from raw materials or substantially alters them before resale) may be counted toward meeting MBE and FBE goals.
(5) Twenty percent (20%) of expenditures to certified MBE or FBE suppliers that are not manufacturers may be counted toward meeting MBE and FBE goals, provided that the MBE or FBE supplier performs a commercially useful function in the supply process. A firm will be considered a supplier performing a commercially useful function in the supply process when it:
A. assumes the actual and contractual responsibility for furnishing the supplies or materials; and
B. is recognized as a distributor by the industry involved in the contracted supplies and materials; and
C. owns or leases a warehouse, yard, building, or whatever other facilities are customary in the industry in supplying such supplies or materials; and
D. distributes, delivers, and services products primarily with its own staff and/or equipment.
(6) MBE or FBE subcontractors who intend to subcontract services to be performed under the contract to non-minority business enterprises and non-female business enterprises may not be counted toward meeting MBE and FBE goals. This provision does not apply to subcontractor's contracts for the purchase of materials, equipment, or supplies which are incident to the performance of services under the contract.
(d) In order to fulfill the purposes of the MBE and FBE goals, contractors using MBEs and FBEs shall use them in a way which preserves meaningful ownership, control and performance of the work or other contract obligations by the MBE or FBE. Failure to do so may subject the contractor to criminal prosecution, decertification, and other sanctions.
(e) Notwithstanding any goal established by the Director pursuant to division (a) of this section, the Council may increase or decrease the percentage goals in any legislation considered by said body.
(f) In furtherance of the efforts by the contracting departments to achieve the annual goals for MBE and FBE participation in City contracts as determined by the Director pursuant to division (a) of this section, the director of a contracting department in consultation with the Director may elect to solicit bids or proposals from only MBEs and FBEs for a particular contract, provided that the estimated cost of the contract does not exceed fifty thousand dollars ($50,000). The contracting department shall furnish the Director with a copy of the bid invitation or request for proposals for such contract and the Director shall provide the contracting department with a list of certified MBEs and FBEs which can be solicited to submit bids or proposals for the contract. The Council shall be notified in writing whenever the director of a contracting department has elected to solicit bids or proposals from only MBEs and FBEs pursuant to this division (f).
(g) Except for contracts solicited in accordance with division (f) of this section, contracts for a dollar amount in excess of ten thousand dollars ($10,000) shall be awarded and administered in accordance with the following standards and procedures:
(1) Bid invitations, requests for proposals and all other specifications for contracts, shall require bidders to include in their bid or proposal such documentation and schedules as required by the Director in which the bidder identifies the bidder's efforts to utilize minority and female business enterprises in a percentage which equals or exceeds the applicable goal. All bidders shall make every effort to subcontract to certified minority and female business enterprises. All bidders shall keep such records of such efforts adequate to permit a determination of compliance with the requirements of this division (g) as are required by the Director. MBE and FBE utilization shall be considered in determining the lowest and best or lowest responsible bid or determining the best proposal.
(2) If the bid invitation or request for proposal contains alternates, the percentage of MBE and FBE participation will be computed with reference to the total dollar amount of the award, including the cost of any alternates to be awarded.
(3) It is the responsibility of the bidder to ensure that all MBEs and FBEs proposed to be used by the bidder in the performance of the contract have been certified by the City prior to the bid opening.
(4) If a bidder is unable to achieve the goal established by the Director for a particular contract pursuant to division (a) of this section, the bidder shall submit a request for exception pursuant to division (a) of Section 187.031.
(5) Prior to execution of a contract, a bidder shall submit to the City such contract documents as is specified by the Director which shall identify the particular minority and female business enterprises and other subcontractors to be utilized in performing the contract, and shall specify for each subcontractor the dollar value of the participation, the type of work to be performed and such information as may reasonably be required to determine whether the minority and female business enterprise participation goals have been satisfied.
(6) All contracts shall contain the following requirements:
A. The contractor shall utilize certified MBEs and FBEs in the performance of the contract in accordance with the participation identified in the contractor's bid or proposal, subject only to the substitution and waiver provisions contained in division (b) of Section 187.031. Failure to utilize certified MBEs and FBEs as identified in the bid or proposal shall constitute a material breach of the contract.
B. The contractor shall make every effort to utilize minority and female business enterprises during performance of the contract.
C. The contractor shall maintain such records as are required by the Director to demonstrate compliance with this chapter and the requirements of the contract relating to minority and female business enterprise participation.
D. The provisions of this chapter shall be incorporated into the contract by reference and any failure of the contractor or any subcontractor to comply with the provisions of this chapter shall constitute a material breach of the contract.
E. Whenever the contract is amended or any change order or subsidiary is authorized and the total dollar amount of the contract is increased by more than ten (10) percent of the dollar value of the original contract, the contractor shall comply with the provisions of this chapter with respect to the work to be paid for through such amendment, change order or subsidiary and ensure that any work which is subcontracted is performed with the same percentage of MBE and FBE participation contained in the contractor's bid or proposal.
(7) In order to be considered best or responsible, a bidder shall disclose annually such information as is required by the Director which demonstrates the extent to which, in contracts that are not affected by this chapter, the bidder has awarded subcontracts to minority and female business enterprises.
(h) Contracts or other agreements between the City of Cleveland and other governmental agencies, quasi governmental agencies, public corporations, or third-party contractors, whereby such agencies or corporations receive money from or through the City for the purpose of contracting with businesses to perform public works, shall require such agencies or corporations to comply with the provisions of this chapter in awarding and administering such contracts.
(i) Participation of MBEs and FBEs in joint ventures is encouraged. In the case of a certified joint venture, only that portion of the total dollar value of the contract equal to the percentage of participation of the minority or female partner in the joint venture will be counted toward the applicable goal.
(j) The Commissioner of Purchases and Supplies and each contracting department hereby is directed to:
(1) Make every effort to increase the level of participation of MBEs and FBEs in contracts of ten thousand dollars ($10,000) or less;
(2) Develop lists of MBEs and FBEs experienced in the various types of services, products or property typically contracted for;
(3) Provide quarterly reports to the Director not later than 30 calendar days after the end of the previous quarterly period specifying with respect to contracts and subcontracts:
A. For the forthcoming quarter, the means by which it intends to meet the goals established by this section;
B. The dollar percentage and dollar amount of those contracts and subcontracts awarded in the previous quarter to MBEs and FBEs;
C. For each contracting department, the degree to which the goals set forth in this section have been met, any past and current activities undertaken and being undertaken in trying to meet such goals and, if applicable, a detailed explanation of why the goals set forth in this section have not been met; and
D. Such other information as may be requested by the Director; and
(4) Appoint a member of the contracting department or the division to serve as a liaison between the contracting department and the Office of Equal Opportunity, and to nominate a member of the contracting department or division to serve on the Committee established pursuant to Section 187.12.
(k) In advertising, soliciting, selecting and contracting for or with any person or firm for engagement as a subcontractor or materialman, and during the term of any subcontract or contract for materials, the contractor shall not discriminate against any potential or actual subcontractor or materialman because of race, religion, color, sex, sexual orientation, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status.
(Ord. No. 792-03. Passed 6-10-03, eff. 6-12-03)
(a) If a bidder is unable to meet the goals for a contract established by the Director in accordance with division (a) of Section 187.03, such bidder shall submit a request for exception prior to the bid opening. The request for exception shall include such documentation as is specified by the Director which demonstrates a good faith effort to utilize MBEs and FBEs to achieve the goals established pursuant to division (a) of Section 187.03.
(b) If, after award of a contract, the contractor is unable to utilize certified MBEs or FBEs as specified in the contractor's bid, the contractor shall seek a substitute certified MBE or FBE to fulfill the requirements. The substitution must be approved by the Director. If, after reasonable good faith efforts, the contractor is unable to find a substitute, a waiver of the contract requirement may be requested of the Director. The request shall document the reasons for the contractor's inability to meet the goal.
(c) A contracting department may request of the Director to waive or reduce the goal for minority and female business enterprise participation in a particular contract, by submitting the reasons therefore in writing prior to solicitation of bids or proposals.
(1) The Director may grant such a waiver or reduction upon determination that:
A. The reasonable and necessary requirements of the contract rendered subcontracting or other participation of businesses other than the bidder or proposer infeasible; or
B. Sufficient qualified minority and female business enterprises capable of providing the goods or services required by the contract are unavailable in the market area of the project despite every feasible attempt to locate them.
(2) Any reduction in goal amounts granted by the Director shall specify the percentage to which the goal has been reduced.
(3) Whenever the Director denies a request to waive or reduce a goal, the contracting department may appeal that denial to the Mayor whose decision on the request shall be final.
(d) A contracting department may waive the goals established by the Director pursuant to division (a) of Section 187.03 for a particular contract under the following circumstances:
(1) Whenever the director of a contracting department finds, with the advice of the Director, that the goods or services are available only from a sole source, and the prospective contractor is not currently disqualified from doing business with the City.
(2) If the director of a contracting department certifies in writing to the Director:
A. that an emergency exists which requires goods or services to be provided with such immediacy that it is unable to comply with the requirements of this chapter; and
B. that the prospective contractor is a minority business enterprise or a female business enterprise or if not, that the prospective contractor will make every good faith effort to subcontract to minority business enterprises and/or female business enterprises should subcontracting be utilized.
(Ord. No. 1186-92. Passed 6-15-92, eff. 6-24-92)
(a) The Director shall establish a Small Contract Rotation Program, Including procedures, applicable to the categories of construction, professional services and purchase contracts where the cost of the contract is anticipated to be under $10,000. The purposes of the Small Contract Rotation Program are to increase opportunities for Minority Business Enterprises and Female Business Enterprises, underutilized at a statistically significant level in City contracts under $10,000, and to provide an orderly and efficient method of awarding work and to equitably distribute work among qualified contractors.
(b) The Small Contract Rotation Program shall provide that every fifth contract to be entered into by the City for each type of contract, within a category, where MBEs and FBEs are underutilized at a statistically significant level, shall be limited to competition among prequalified MBEs and FBEs. The Director may prequalify firms previously certified by the Director as MBEs and FBEs and who submit an application in a form acceptable to the Director. The Director shall compile an approved pre-qualified list for each industry and, as needed, compile specialized lists within industries. The eligible businesses shall be randomly ranked on each list and, for a thirty-day period commencing on January 1st and June 1st of each year, the Director shall hold open enrollment. The lists of pre-qualified vendors shall be made available to the public. The Commissioner of Purchases and Supplies shall obtain bids or proposals from at least three MBEs or FBEs on the list for each contract entered into under the Small Contract Rotation Program.
(Ord. No. 796-03. Passed 6-10-03, eff. 7-20-03)
(a) No contractor shall discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status. Contractors shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to race, religion, color, sex, sexual orientation, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status. As used herein, "treated" means and includes without limitation the following: recruited, whether by advertising or other means; compensated, whether in the form of rates of pay or other forms of compensation; selected for training, including apprenticeship, promoted, upgraded, demoted, transferred, laid off and terminated. Contractors shall post in conspicuous places available to employees and applicants for employment, notices to be provided by the hiring representatives of contractors setting forth the provisions of this nondiscrimination clause.
(b) Goals, as established herein, shall be used to encourage affirmative action by all parties who participate in contracts with the City. All contractors and subcontractors shall use their best efforts to attain such goals in accordance with the criteria herein specified. However, the goals shall not be construed as quotas.
(1) Prior to the time invitations for bids are advertised for construction contracts, the Administrator shall establish the percentage goals of minority and female employment for each trade involved in the performance of the contract, which percentage goal shall be determined with reference to such factors as the Administrator shall consider relevant, including but not limited to, the percentage of minority or female employment in such trade shown or reflected in the most recent statistics published by the United States Bureau of Census for the Cleveland Standard Metropolitan Statistical Area ("SMSA").
(2) As part of the specifications for all contracts other than construction contracts, the Administrator shall have established the percentage goals of minority and female employment for each occupation involved in the performance of the contract within the Cleveland SMSA, which percentage goals shall be determined with reference to such factors as the Administrator shall consider relevant, including but not limited to, the percentage of minority and female employment in such occupation shown or reflected in the most recent statistics published by the United States Bureau of Census for the Cleveland SMSA.
(3) Contractors shall strive to utilize MBEs and FBEs so as to enable contracting departments to meet the goals set forth in division (a) of Section 187.03. The utilization of MBEs or FBEs as subcontractors or as suppliers to the contractor or to subcontractors will be considered in determining the lowest and best or lowest responsible bidder, as appropriate.
(Ord. No. 77-94. Passed 3-14-94, eff. 3-23-94)
(a) A contractor shall qualify for a certificate of employment compliance when the Director, from the required submittals and other information supplied by the contractor, determines that the goals established pursuant to Section 187.04 of this Code have been met and that the contractor is otherwise complying with this Code and its regulations.
(b) A contractor that has not met the goals established pursuant to subsections 187.04(b)(1) and (2) may be deemed by the Director to be in compliance with this Code if the required submittals and other information supplied by the contractor assure the Director that the contractor is ensuring equal employment opportunities by taking specific affirmative actions, with regard to its employees, facilities and performance of the contract. In making the determination under this subsection, the Director may require the contractor to submit and implement a written affirmative action plan containing such terms as the Director may require. When the Director is satisfied that the contractor has complied with the Code, its regulations and with this subsection, the Director shall issue a written "statement of deemed compliance."
(c) By notice in writing to the Director and the Clerk of Council, the Mayor may waive compliance with the employment goals set forth in Section 187.04 with respect to a specific contractor seeking the award of a specific contract when, in the Mayor's sole judgment, such action is necessary to preserve the health, welfare and public safety.
(Ord. No. 1660-85. Passed 2-10-86, eff. 2-12-86)
(a) All contractors with the City must hold:
(1) A valid certificate of employment compliance or a statement of deemed compliance under division (a) (1) of Section 187.07, unless the Mayor has waived such compliance; and
(2) A certificate of general compliance with this Code under division (a)(4) of Section 187.07.
(b) In order to retain a certificate of compliance, each contractor whose bid includes participation by MBEs or FBEs must demonstrate that the prime bidder:
(1) Has reached a specific agreement with each participating MBE or FBE subcontractor;
(2) Has accurately and fully represented the essence of their agreement in the bid documents; and
(3) Is using MBEs or FBEs in a way which is acceptable under this Code and its regulations.
If the Administrator has made a finding of noncompliance under division (c)(3) of Section 187.07, then the City may reject the bid until such proceedings are resolved.
(c) MBEs and FBEs must be certified under divisions (a)(2) and (a)(4) of Section 187.07. Contractors seeking to use certified MBEs or FBEs shall ensure that all forms and related materials required for certification are submitted to the Director in a timely fashion.
(d) Certificates issued by the Director pursuant to divisions (a)(1) through (a)(4) of Section 187.07 shall be valid for one (1) year or as otherwise specified in the regulations.
(e) If the Director finds that a contractor is not in compliance with the applicable provisions of this Code or is in default with respect to any representation made by the contractor regarding applicable provisions of this Code and upon which a certificate was awarded, then the relevant certificate may be withdrawn prior to its expiration. All certificates must be renewed on forms provided by the Office of Equal Opportunity.
(f) The Administrator shall monitor compliance with the requirements of this chapter during the term of the contract. If the Administrator determines that there is cause to believe that a contractor or a subcontractor has failed to comply with any of the requirements of this chapter, or the contract provisions pertaining to minority business enterprise or female business enterprise participation, the Administrator shall notify the contractor in accordance with the provisions of division (c) of Section 187.07. The provisions of divisions (c), (d) and (e) of Section 187.07, Section 187.08 and 187.09 shall be applicable for the review and appeal of this determination by the Administrator.
(g) The Director may require such reports, information and documentation from contractors, bidders, contracting departments, and the head of any department, division or office of the City of Cleveland, as reasonably necessary to determine compliance with the requirements of the chapter and any contract provisions regarding MBE and FBE participation.
(h) Contracting departments shall maintain accurate records for each contract awarded, including dollar value, the nature of the goods and services to be provided, the name of the contractor awarded the contract, the efforts employed to solicit bids from minority business enterprises and female business enterprises, and all subcontracts awarded by the contractor, including dollar value, the nature of the goods or services provided, and the name of the subcontractor.
(i) On or before the fifteenth day of the month following the completion of each quarter, the Director shall publish in the City Record a list of all MBEs and FBEs certified by the Director during the preceding quarter, including identification of the type of work that each performs, and a list of any business enterprise that has lost its certification as a MBE or FBE for purposes of this chapter during the preceding quarter, including whether an appeal of this determination is pending. On or before the fifteenth day of the month following the completion of each quarter, the Director shall furnish each member of Council with a list of any business enterprise which has been denied certification as a MBE or FBE for purposes of this chapter during the preceding quarter, including whether an appeal of this determination is pending. The printing of the name of a certified MBE or FBE in the City Record pursuant to this division shall not be a prerequisite for eligibility for the award of a City contract.
(Ord. No. 1186-92. Passed 6-15-92, eff. 6-24-92)
(a) Under the direction of and upon authorization from the Director, the Administrator shall have the authority to review and certify all contractors, contracts and bids as to compliance with this Code and its regulations. Based upon such review, the Administrator may issue or deny certificates of compliance or, in the case of equal employment as described in subsection (a)(1), statements of deemed compliance to contractors with respect to the following areas:
(1) Equal employment of minorities and women in the contractor's workforce, as described in subsections 187.04(b)(1) and (2);
(2) Bona fide status as MBEs or FBEs, as defined in subsection 187.01(p) and (k);
(3) Bona fide status as a joint venture as defined in subsection 187.01(n); and
(4) Compliance with this Code and its regulations.
Any certification with regard to professional service contracts entered into by the Director of Law may be deferred at the discretion of the Director of Law; but shall occur prior to final payment under the contract.
(b) Any person having knowledge of facts tending to show that a contractor has obtained or is seeking certifications by false or inaccurate representations to the Office of Equal Opportunity may initiate the administrative procedures set forth in Sections 187.07 to 187.09. For purposes of these sections all contractors are responsible for maintaining their current addresses and those of their subcontractors with the Administrator; upon mailing by certified mail of any notice to such filed address, the required notice shall be complete.
(c) If the Administrator has reason to believe that a contractor is in default with respect to any representation by the contractor regarding applicable provisions of this Code and its regulations, and upon which a certification or contract was awarded the Administrator shall:
(1) Send the contractor written notice by certified mail or personal delivery of any apparent noncompliance with applicable terms of the Code;
(2) Give the contractor forty-eight (48) hours from receipt of the notice, or other specified reasonable opportunity to submit records or offer other information in support of its continued certification and compliance with the provisions of the Code. Failure of the contractor to submit records or other information promptly as requested by the Administrator may be deemed by the Administrator to be agreement by the contractor to the conditions and circumstances of noncompliance addressed in the Administrator's notice to the contractor; and
(3) If the Administrator, after reviewing the information submitted under subsection 187.07(c)(2) determines that the contractor is not in compliance with the Code, then he shall issue a written finding of noncompliance or default under the Code, stating the basis for that finding and giving notice to the contractor of the right to object to the finding.
(d) Any contractor taking exception to a finding of the Administrator may attempt to reconcile the differences through informal methods of conciliation and persuasion and/or file a written objection, with reasons for the objection, with the Administrator by certified mail within five days of mailing of the Administrator's written finding. The Administrator may enter into a settlement agreement regarding the finding. If a written objection is filed, the Administrator shall forward the objection to the Director, within five days of its receipt along with all materials relating to the determination which is appealed from, together with any recommendations of appropriate remedial action to be taken. The provisions of Section 187.08 will then apply.
(e) If the Administrator finds a contractor is in default under this Code, and if no reconciliation is attempted by the contractor within five days of mailing of the written finding, the Administrator shall forthwith forward his findings to the Director along with a recommendation of appropriate remedial action to be taken or sanctions to be imposed. The Director shall then make a decision as to whether or not a status of noncompliance exists based solely on the findings of the Administrator and shall take such of the actions set out in subsection 187.09(a) as are applicable and consistent with his determination.
(Ord. No. 1660-85. Passed 2-10-86, eff. 2-12-86)
If the contractor files a timely objection as provided in division (d) of Section 187.07 to a written finding by the Administrator, the Director shall hold a hearing on the matter of the objection. The hearing shall be held not less than five days nor more than ten days from the filing, unless otherwise mutually agreed to by the contractor and the Director. Notice of the date, time, and place for the hearing shall be sent by certified mail to all interested parties by the Director. The contractor shall have the right to record the proceedings of the hearing at the sole expense of the contractor.
(Ord. No. 791-03. Passed 6-10-03, eff. 6-12-03)
(a) In any investigation relating to compliance by contractors or firms with the City's MBE and FBE requirements under Section 187.07 or in any hearing held under Section 187.08 relating to a contractor's compliance with the City's MBE and FBE requirements, the Administrator or the Director may issue in writing and cause to be served a subpoena requiring the following:
(1) the production of any records or other things relevant to the investigation; and
(2) relevant testimony.
(b) Any subpoena Issued under division (a) is subject to the same limitations as would apply if the subpoenas were issued or served in aid of a civil action in a court of common pleas.
(c) In case of refusal to obey a subpoena issued by the Administrator or the Director, the Director of Law may petition for its enforcement in the court of common pleas in the county in which the person to whom the subpoena was addressed resides, was served, or transacts business.
(Ord. No. 791-03. Passed 6-10-03, eff. 6-12-03)
(a) Within five days after the hearing required by Section 187.08, the Director shall issue and send by certified mail to the contractor, findings of fact and a determination of compliance or noncompliance with the Code. If the Director determines that the contractor is in compliance with the applicable provisions of the Code, he shall issue an appropriate certificate. If the Director determines that the contractor is in default with respect to any representation by the contractor upon which a certificate or contract was awarded or that the contractor is not in compliance with the applicable provisions of the Code and its regulations, the Director, in addition to whatever other remedies may be available with respect to the foregoing and other defaults under any contract in question, may:
(1) Cancel any existing certificate or statement of deemed compliance or order that a certificate or statement of deemed compliance not be issued until the contractor cures the default or is in full compliance with the applicable provisions of the Code; or
(2) Recommend that the City withhold all or part of any payments due such contractor until such time as the contractor cures the default or is in full compliance with the applicable provisions of the Code; or
(3) Recommend that the City cancel the contract and declare a forfeiture of any performance bond;
(4) Recommend that the Director of Law take such legal action, whether civil or criminal, as he deems appropriate;
(5) Recommend rescission of the contract based upon a material breach of contract pertaining to MBE and FBE participation;
(6) Recommend disqualification of a bidder, contractor, or other business from eligibility for providing goods or services to the City for a period not to exceed two (2) years; or
(7) Payment of damages, including any liquidated damages specified in the contract.
(b) Notwithstanding any other provision of this section, if the Director determines after an investigative hearing that the City has contracted with a Front Organization and/or that a Contractor has participated with an FBE or MBE Contractor in activities it knew would create a Front Organization, then the Director shall:
i) Decertify the Contractor and and/or Front Organization;
ii) Prohibit the Contractor and/or Front Organization from being certified for a period of not less than one (1) year after a final determination; and
iii) Refer the matter to the City Prosecutor's office for appropriate action pursuant to section 187.131.
(c) The decision of the Director is final and may be appealed to the Board of Zoning Appeals, whose decision, in turn, may be reviewed by the Common Pleas Court pursuant to RC Chapter 2506, or as otherwise provided by law.
(Ord. No. 1029-03. Passed 6-10-03, eff. 6-12-03)
Where invitations for bids are advertised, the following notice shall be included in the advertisement: "Pursuant to the MBE/FBE Code, each prime bidder, each minority business enterprise ("MBE") and each female business enterprise ("FBE") must be certified before doing business with the City. Therefore, any prime contractor wishing to receive credit for using an MBE or FBE should ensure that applications for certifications as to MBE or FBE status compliance with the Code, affirmative action in employment and, if applicable, joint venture status, are submitted to the Office of Equal Opportunity ("OEO") prior to the date of bid opening or submission of proposals or as specified by the Director. Failure to comply with the Business Enterprise Code or with representations made on these forms may result in cancellation of the contract or other civil or criminal penalties."
(Ord. No. 1660-85. Passed 2-10-86, eff. 2-12-86)
(a) Contracting departments hereby are directed to include the terms of the notice set forth in Section 187.10 in all specifications for contracts. The satisfaction of the duties and agreements set forth in that clause shall be considered by the Director in determining whether a contractor is in compliance with this Code.
(b) Each contract also shall contain the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) The contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status. The contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to race, religion, color, sex, sexual orientation, national origin, age, disability, ethnic group, or Vietnam-era or disabled veteran status. As used herein, "treated" means and includes without limitation the following: recruited, whether by advertising or other means; compensated, whether in the form of rates of pay or other forms of compensation; selected for training, including apprenticeship, promoted, upgraded, demoted, downgraded, transferred, laid off and terminated. The contractor agrees to and shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the hiring representatives of the contractor setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that the contractor is an equal opportunity employer.
(3) The contractor shall send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract, or understanding, a notice advising the labor union or worker's representative of the contractor's commitments under the equal opportunity clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(4) It is the policy of the City that business concerns owned and operated by minority persons and/or women shall have every practicable opportunity to participate in the performance of contracts awarded by the City.
(5) The contractor shall permit access by the Director or his designated representative to any relevant and pertinent reports and documents to verify compliance with the Business Enterprise Code, and with the regulations of the Office of Equal Opportunity. All such materials provided to the Director or his designated representative by the contractor shall be considered confidential.
(6) The contractor will not obstruct or hinder the Director or his designated representative in the fulfillment of the duties and responsibilities imposed by the Business Enterprise Code.
(7) The contractor agrees that each subcontract will include this Equal Opportunity Clause, and the contractor will notify each subcontractor, materialman and supplier that the subcontractor must agree to comply with and and be subject to all applicable provisions of the Business Enterprise Code. The contractor shall take any appropriate action with respect to any subcontractor as a means of enforcing the provisions of the Code.
(Ord. No. 77-94. Passed 3-14-94, eff. 3-23-94)
The Director shall serve as chairman of a Review and Evaluation Committee comprised of at least one member from each contracting department and one business enterprise liaison from the Division of Purchases and Supplies, and one member of Council or its representative as nominated by the President of Council. Such members may be appointed by the Mayor from among nominees presented to him by the contracting departments and serve at the discretion of the Mayor. The Committee shall meet as is necessary to fulfill the following responsibilities:
(a) Review and monitor each contracting department's MBE and FBE programs.
(b) Assist the Director in preparing annual reports to the Mayor on the progress of the City's MBE and FBE programs.
(c) Recommend changes in the regulations promulgated under this Code.
(d) Assist, as appropriate, in the implementation of this Code.
(e) Prepare, review and make recommendations concerning the directory of certified minority and/or female business enterprises.
(f) Service as the steering committee of City sponsored workshops and seminars for minority and female business enterprises.
(g) Cooperate in preparing a minority and female business enterprise newsletter and otherwise publicize business opportunities for MBEs and FBEs.
(h) Assist in preparing a business enterprise monthly awards report.
(i) Carry out such other oversight or coordination functions as may be requested by the Director.
(Ord. No. 1660-85. Passed 2-10-86, eff. 2-12-86)
(a) If a construction contract is estimated to take more than ninety days to complete or calls for the City to expend $500,000 or more, each contractor and subcontractor shall submit project site reports to the Administrator containing such information as the Administrator may require. Reports shall be submitted as requested by the Administrator, but at least every ninety days.
(b) Failure to submit any required report may result in imposition of any of the sanctions listed in Section 187.09.
(Ord. No. 1660-85. Passed 2-10-86, eff. 2-12-86)
(a) It is a violation of the chapter to:
(1) Fraudulently obtain, retain, attempt to obtain or retain, or aid another in fraudulently obtaining or retaining or attempting to obtain or retain certification as a minority business enterprise or a female business enterprise for purposes of this chapter.
(2) In any minority business enterprise or female business enterprise matter administered pursuant to this chapter to willfully falsify, conceal or cover up by a trick, scheme or device a material fact, or make any false, fictitious or fraudulent statements or representations or make use of any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry.
(3) Willfully obstruct, impede or attempt to obstruct or impede any authorized official or employee who is investigating the qualifications of a business entity which has requested certification as a minority business enterprise or female business enterprise;
(4) Fraudulently obtain, attempt to obtain, or aid another person fraudulently obtaining or attempting to obtain, public monies to which the person is not entitled under this chapter;
(5) Make false statements to any entity that any other is or is not certified as a minority business enterprise or a female business enterprise for purposes of this chapter.
(b) Any person who violates the provisions of this section is guilty of a misdemeanor of the first degree and upon conviction is subject to imprisonment for a period of not more than six (6) months or a fine of not more than one thousand dollars ($1,000), or both.
(Ord. No. 1186-92. Passed 6-15-92, eff. 6-24-92)
The Director shall prepare a quarterly report that details the use of bid discounts and evaluation credits in the award of City contracts, the use of the subpoena power under Section 187.081, and the waiver or reduction of any performance bonds under Sections 181.32 and 185.14, during the previous three-month period. The report shall be made public and a copy of the report shall be sent to the members of City Council.
(Ord. No. 795-03. Passed 6-10-03, eff. 6-12-03)
Each section and each part of each section of this Business Enterprise Code is hereby declared to be an independent section or part of a section, and notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any such section or part of a section or any provision thereof, or the application thereof to any person or circumstances, is held to be invalid, the remaining sections or parts of sections and the application of such provision to any other person or circumstances, other than those as to which it is held invalid, shall not be affected thereby. It is further declared to be the legislative intent that the other provisions of this Code would have been adopted independently of such section or parts of a section, which are held to be invalid.
(Ord. No. 1660-85. Passed 2-10-86, eff. 2-12-86)
This Business Enterprise Code is enacted as a temporary measure to alleviate the inequitable treatment of minorities and women in the City of Cleveland as found to exist by the Council of the City of Cleveland. This Code shall remain in full force and effect, subject to periodic review by the Council of the City of Cleveland. The Council shall regularly, but at a minimum once every five (5) years, determine whether there is a continuing need for a minority and female business enterprise program, make relevant findings in support of that determination, and, if necessary, amend this chapter as appropriate.
(Ord. No. 1186-92. Passed 6-15-92, eff. 6-24-92)
(a) The Director of the Office of Equal Opportunity is authorized to conduct the James H. Walker Construction Management Training Course up to twice annually, to conduct other training and facilitate and coordinate development activities authorized by and consistent with Section 123.08 of the codified ordinances, and to fix and collect registration fees from training seminar or activity participants.
(b) The Director of the Office of Equal Opportunity is authorized to make purchases and enter into one or more agreements under the Charter including relevant Codified Ordinances for training and development materials, supplies, refreshments, graduation dinners, and, if necessary, rental of a site for a course or activity.
(c) The Director of the Office of Equal Opportunity shall deposit the registration fees collected from participants in the training courses or activities into the MBE/FBE Educational Program Account. All expenditures made under this section shall be paid from registration fees collected, which are appropriated for these purposes, and from funds appropriated for the use of the Office of Equal Opportunity.
(Ord. No. 2013-06. Passed 6-11-07, eff. 6-15-07)
|
For Legal Professionals | For Corporate Counsel | For Law Students
