HomeMy WebLinkAbout1988-185-11/15/1988-BUSINESS ENTERPRISE PLAN REVISED DISADVANTAGED RESOLUTION 88-185
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ADOPTING THE REVISED DISADVANTAGED BUSINESS
ENTERPRISE PLAN OF THE CITY OF FORT COLLINS.
WHEREAS, the City of Fort Collins is committed to the Disadvantaged
Business Enterprise (DBE) program; and
WHEREAS, the current DBE Plan is used to carry out the Department of
Transportation's policy of supporting the fullest possible participation of
firms owned and controlled by minorities and women as required by 49 CFR
Part 23 and Subpart D, "Participation of Minority Business Enterprise in
Department of Transportation Programs"; and
WHEREAS, to this end, the Council of the City of Fort Collins has
adopted a DBE Plan and has appointed the Purchasing Agent as the
responsible official to administer and enforce the Plan; and
WHEREAS, the Purchasing Agent, as DBE liaison officer, coordinates the
efforts of City project managers and others to ensure that the DBE Plan is
carried out and circulates the DBE Plan to area minority and non-minority
businesses; and
WHEREAS, the City is required to adopt a revised DBE Plan in order to
continue to be eligible for UMTA grant funds; and
WHEREAS, Council has reviewed the revised DBE Plan dated November 15,
1988.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that the revised Disadvantaged Business Enterprise Plan dated
November 15, 1988, attached hereto and incorporated herein, be, and the
same hereby is, adopted.
Passed and adopted at a regular meeting of the Council of the City of
Fort Collins held this 15th day of November, 1988.
Ma
ATTEST:
City Clerk
DISADVANTAGED BUSINESS ENTERPRISE PLAN
CITY OF FORT COLLINS, COLORADO
(REVISED NOVEMBER 15, 1988)
DISADVANTAGED BUSINESS ENTERPRISE PLAN
CITY OF FORT COLLINS, COLORADO
As elected and appointed officials of the City of Fort Collins, Colorado
this statement expresses the City' s commitment to the Disadvantaged
Business Enterprise program to carry out the Department of Transportation' s
policy of supporting the fullest possible participation of firms owned and
controlled by minorities and women as required by Regulatiion 49CFR , Part
23 , and Subpart D, "Participation by Minority Business Enterprise in
Department of Transportation Programs."
To this end, the City Council of the City of Fort Collins, Colorado, has
adopted the attached Disadvantage Business Enterprise plan and has
appointed the Purchasing Agent as the responsible official to administer
and enforce the plan ,
The Purchasing Agent as DBE liaison officer will coordinate the efforts of
the Project Manager and others to ensure the DBE plan is carried out.
The DBE plan will be r ulated to area minority and non-minority
businesses.
E o e , ay or
Steven C. Burkett, City Manager
Wanda KraUicek, ityxCl k
I - GENERAL
A. PURPOSE
The purpose of this plan is to carry out the Department of Transporta-
tion' s policy of supporting the fullest possible participation of
firms owned and controlled by disadvantaged businesses (DBEs) in
Department of Transportation programs. This includes assisting
DBEs throughout the life of contracts in which they participate.
B. APPLICABILITY
This part applies to Department of Transportation programs of the
Federal Highway Administration (FHWA) and the Urban Mass
Transportation Administration (UMTA) through which funds are made
made available to the City of Fort Collins for accomplishing DOT
purposes.
C. DEFINITIONS
1. Affirmative Action means taking specific steps to eliminate dis-
crimination and its effects to ensure nondiscriminatory results
and practices in the future and to involve minority business
enterprises in contracts and programs funded by the Department.
2. Applicant means one who submits an application request or plan to
be approved by a Department official or by a primary recipient as
a condition to eligibility for DOT financial assistance, and
"application" means such an application request or plan.
3. Compliance means the condition existing when a recipient or con-
tractor has met and implemented the requirements of this part.
4. Contract means a mutually binding legal relationship or any modifi-
cation thereof obligating the seller to furnish supplies or ser-
vices including construction and the buyer to pay for them. For
purposes of this part a lease is a contract .
5. Contractor means one who participates through a contract or subcon-
tract-in any program covered by this part and included lessees .. .
6. Department or DOT means the Department of Transportation including
its operating elements .
7. DOT-ASSISTED CONTRACT means any contract or modification of a
contract between a recipient and a contractor which is paid for in
whole or in part with DOT financial assistance or any contract or
modification of a contract between a recipient and a lessee.
8. DOT Financial Assistance means financial aid provided by the
Department or the United States Railroad Assoc, to a
recipient but does not include a direct contract . The
financial aid may be provided directly in the form of actual
money, or indirectly in the form of guarantees authorized by
statute as financial assistance services of Federal personnel
title or other interest in real or personal property
transferred for less than fair market value or any other
arrangement through which the recipient benefits financially
including licenses for the construction or operation of a Deep
Water Port,
9. Department Element means the following parts of DOT,
a, The Federal Highway Administration (FHWA) ;
b, The Urban Mass Transportation Administration (UMTA) ;
10. Joint venture means an association of two or more businesses
to carry out a single business enterprise for profit for which
purpose they combine their property, capital , efforts, skills
and knowledge.
11 . Lessee means a business or person that leases, or is
negotiating to lease property from a recipient or the
Department on the recipient' s or department' s facility
for the purpose of operating a transportation-related
activity or for the provision of goods or services to the
facility or to the public on the facility,
12. Small Business Concern; As defined Small Business Act, 13 CFR ,
Part 121.
13, Disadvanta ed Business (DBE) means a small business concern ,
See Appendix B - Guidance for Making Determinations of Social
and Economic Disadvantage) .
a. Which is at least 51 percent owned by one or more socially
and economically disadvantaged individuals, or in the case of
any publicly owned business at least 51 percent of stock of
which is owned by one or more socially and economically
disadvantaged individuals; or
b. Which is at least 51 per centum owned by one or more
women or, in the case of a publicly owned business, at least
51 per centum of the stock of which is owned by one or more
women; and
c. Whose management and daily business operations are controlled
by one or more of the socially and economically disadvantaged
individuals who own it.
14. Socially and Economically Disadvantaged Individuals means those
tndtvtduals who are ctttzens of the United States (or lawfully
admitted permanent resident) who are,
a. Black Americans , which includes persons having origins in any
of the black racial groups of Africa.
b. Hispanic American, which includes persons of Mexican , Puerto
Rican, Cuban, Central or South American, Portugese or Spanish
culture or origin , regardless of race.
c. Native Americans which includes persons who are American
Indians , Eskimos , Aleuts, or Native Hawaiians.
d. Asian - Pacific Americans which includes persons whose
origins are from Japan, China, Taiwan, Korea, Vietnam. Laos ,
Cambodia, the Philippines, Samoa, Guam, the U.S. Trust
Territories of the Pacific, and the North Marianas.
e. Asian Indian Americans which includes persons whose origins
are from India, Pakistan, and Bangladesh.
f. Any other minorities or individuals found to be disadvantaged
by the Small Business Administration pursuant to Section 8
(a) of the Small Business Act.
g. The City of Fort Collins shall make a rebuttable presumption
that individuals who are Black Americans , Hispanic Americans ,
Native Americans, Asian - Pacific Americans , or Asian, -
Indian Americans are socially and economically disadvantaged.
The City of Fort Collins also may determine, on a
case-by-case basis, that individuals who are not a member of
one of the aforementioned groups are socially and
economically disadvantaged.
15. DBE Coordinator means the official designated by the
head of the Department element to have overall responsibility
for promotion of minority business enterprises in his/her
Departmental element.
16 . Noncompliance means the condition existing when a recipient or
contractor has failed to implement the requirements of this part.
17. Primary recipient is a recipient who receives DOT financial
assistance and passes some or all of this assistance on to
another recipient.
18. Program means any undertaking by a recipient to use DOT
financial assistance, and includes the entire activity any
part of which receives DOT financial assistance.
19. Recipient means any entity, public or private, to whom DOT
financial assistance is extended, directly or through
another recipient for any program.
20. Secretary means the Secretary of Transportation or any
Person whom he/she has designated to act for him/her.
21 . Set Aside means a technique which limits consideration of bids
or proposals to those submitted by DBEs.
D. DISCRIMINATION PROHIBITED
No persons shall be excluded from participation in, denied the
benefits of, or otherwise discriminated against in connection with
the award and performance of any contract covered by this part on
the grounds of race, color, national origin or sex.
II - DEPARTMENT OF TRANSPORTATION
FINANCIAL ASSISTANCE PROGRAMS
A. GENERAL
This plan will apply to contracts and grants as follows:
1. For funds awarded exclusive of transit vehicle purchases under
Sections 3, 5, 9, 9a, 17 and 18 of the Urban Mass
Transportation Act of 1964 as amended and Federal Aid Urban
Systems.
2. For funds awarded under Sections 6 and 8 of the Urban Mass Trans-
portation Act of 1964 as amended.
3. For Federal Aid Highway Program funds .
B. CITY OF FORT COLLINS REQUIREMENTS DBE PROGRAM COMPONENTS
This disadvantaged business enterprise plan expresses the commitment
of Fort Collins, Colorado to its objectives and outlines various
levels of responsibility. This plan shall be circulated throughout
the City and to minority, female and non-minority business organizations.
In connection with implementation of this plan:
1. The City of Fort Collins hereby appoints the Purchasing Agent as
the DBE liaison officer who will be responsible for developing ,
managing and implementing the DBE program on a day-to-day basis
for carrying out technical assistance activities for DBEs and
for disseminating information on available business opportunities
so that DBEs are provided an equitable opportunity to bid on
the applicant' s contracts . The DBE liaison officer will report
directly to the City Manager.
2. The City of Fort Collins shall develop and use affirmative action
techniques to facilitate DBE participation in contracting
activities. These techniques include:
a. Where appropriate, information and communication programs on
contracting procedures and specific contracting opportunities
will be bilingual .
b. Arranging solicitation times for the presentation of bid
quantities , specifications and delivery schedules so as to
facilitate the participation of DBEs.
c. Providing assistance, as may be required by law, to DBEs
in overcoming barriers, such as the inability to obtain bond-
ing, financing or technical assistance.
d. Provide instructions on bid specifications, procurement policy
and general bidding requirements .
e. Carrying out information and communications programs on con-
tracting procedures and specific contracting opportunities
in a timely manner (where possible, 20 days before adver-
tisement) .
f. Where available, encouraging opportunities for the use of
banks owned and controlled by minorities.
g. Having available a directory or source list to facilitate
identifying DBEs with capabilities relevant to general
contracting requirements and to particular solicitations . The
City shall make the directory available to bidders and pro-
posers in their efforts to meet the DBE requirements.
h. Insuring that the City' s DBE program benefits only firms
owned and controlled by disadvantaged businesses and women .
The City shall certify the eligibility of DBEs and joint
ventures involving DBEs that are named by the bidders.
i . Requiring prime contractors to make good-faith efforts to
replace an DBE subcontractor unable to perform successfully
with another DBE.
j . Requiring City approval of all substitutions of subcontractors
before bid opening and during contract performance in order to
insure that the substitute firms are eligible DBEs.
k. Submission by the City of its overall goals to the department
for approval and the publishing of a notice announcing these
goals, informing the public of the goals and a description of
how they were selected and that they are available for inspec-
tion during normal business hours for 30 days. The notice
will include addresses to which comments may be sent and shall
be published in general circulation media and available
minority focus media and trade association publications and
shall state that the comments are for informational purposes
only. Comments on the goals will be accepted by the Depart-
ment of Transportation and the City for 45 days from the date
of notice.
1 . The City of Fort Collins will seek DBEs in the area of 50
miles and as part of its efforts to meet the goal shall expand
its search to a reasonable wider geographic area of 100 miles .
3. The City of Fort Collins will insure that advertisement for bids
will be sent or mailed to minority organizations and firms.
4. The City of Fort Collins will require the apparent successful
contractors to submit:
a. The names and addresses of DBE firms that will participate.
b. Descriptions of the work each named firm will perform.
c. The dollar amount of participation of each firm.
5. The City of Fort Collins will require prime contractors to meet the
City of Fort Collins' goals, or document good faith efforts if
unable to meet the goals .
6. The City of Fort Collins will encourage prime contractors to joint
venture with DBEs.
7 . The City of Fort Collins will provide appropriate technical assis-
tance.
8. The City of Fort Collins will waive bonding requirements where
allowed by state statutes.
9. The City of Fort Collins establishes the overall goal for DBE
participation to be 14%. The City will adjust individual contract
goals to meet the overall goal .
10. When contracting for supplies, only 60% of the amount spent may be
counted toward the overall goals .
11 . The City of Fort Collins will contact SBA, as necessary for pro-
viding training seminars and speakers on the requirements for
operating a small business.
12. The City of Fort Collins will consider the following factors in
setting overall goals:
a. Overall goals shall be based on projection of the number and
types of contracts to be awarded by the City and paid for with
DOT grants, and a projection of the number and types of DBEs
likely to be available to compete for contracts from the
City over the period during which the goals will be in effect.
The City' s goals shall be based on the availability of DBE
and on past results of the City of Fort Collins efforts to
contract with DBEs and the reasons for the high or low level
of those results.
13. The City of Fort Collins will compile an accurate up-to-date
directory of DBEs .
14. The City of Fort Collins will review goals at least annually and
whenever they expire.
15. The City of Fort Collins will submit separate overall goals and
contract goals for the participation of DBEs . Goals for
specific contracts will be based on the known availability of
qualified DBEs.
16. The City of Fort Collins will annually review and submit new goals
for departmental approval .
17. The City of Fort Collins will make a good-faith effort, including
extra expense and time, to replace a defaulting DBE with
another DBE and will contact available DBE referral services
and individual DBEs in an effort to contract the work of
the defaulting firm with another DBE , as well as to increase
the participation of satisfactory DBEs in the project. The
City will provide the substitute DBE with copies or descrip-
tions of new or amended contracts and a completed certification
form for each new DBE.
18. The City of Fort Collins will search for DBEs in at least the
same areas in which they look for non DBE contractors . If
there are too few DBEs in the area, it will expand its search
in order to make reasonable efforts to meet overall or contract
goals.
19. DBEs and DBE joint ventures must be certified as being
DBEs or joint ventures by the City or by other DOT Agencies .
The City will require Schedule A - Information for Determining
Disadvantaged Owned Business Enterprise eligibility or
Schedule B - Information for Determining Joint Venture eligibility
to be filled out and returned to the City for evaluation .
20. Where permitted by law, the following criteria shall be used to
insure that prime contracts are awarded to competitors that meet
DBE goals or show good faith efforts to meet DBE goals .
a. The City of Fort Collins shall allow the low bidder to receive
the contract if it met the DBE contract goals or if it
satisfied the City that it has made good faith efforts to do
SO.
Good faith efforts must be those that one could reasonably
expect a contractor to take if the contractor were actively
and aggressively seeking to meet the DBE goals.
i . Attendance at pre-solicitation or pre-bid meetings that
were scheduled by the City to inform DBEs of con-
tracting and subcontracting opportunities.
1
ii . Whether the contractor advertised in general circulation,
trade association and minority-focus media concerning the
subcontracting opportunities at least 20 days before bid
or proposals are due. If 20 days are not available,
publication for a shorter reasonable time is acceptable.
iii . Whether the contractor provided written notice to a rea-
sonable number of specific DBEs that their interest
in the contract was being solicited , in sufficient time
to allow the DBEs to participate effectively,
iv. Whether the contractor followed up initial solicitation
of interest by contacting DBEs to determine with
certainty whether the DBEs were interested .
v. Whether the contractor selected portions of the work to
be performed by DBEs in order to increase the
likelihood of meeting the DBE goals ( including, where
appropriate, breaking down contracts into economically
feasible units to facilitate DBE participation) .
vi . Whether the contractor provided interested DBEs with
adequate information about plans , specification , and
requirements of the contract .
vii . Whether the contractor negotiated in good faith with
interested DBE not rejecting DBEs as unquali-
fied without sound reasons based on a thorough investiga-
tion of their capabilities .
viii . Whether the contractor made efforts to assist interested
DBEs in obtaining bonding, lines of credit, or
insurance required by the recipient or contractor.
ix. Whether the contractor effectively used the services of
available minority community organizations , minority,
contractors groups; local , state and Federal minority
business assistance offices. , and other organizations
that provide assistance in the recruitment and placement
of DBEs.
b. Competitors that failed to demonstrate sufficient good faith
efforts to reach DBE goals shall not be eligible to be
awarded the contract.
21 . To insure that all obligations under contracts awarded to DBEs
are met, the City shall review the contractors DBE involvement
efforts during the performance of the contract. The contractor
shall bring to the attention of the City any situation in which
regularly scheduled progress payments are not made to DBE
subcontractors .
22. Subrecipients, Contractors and Subcontractors will comply with
applicable DBE requirements.
C. MAINTENANCE OF RECORDS AND REPORTS
The City of Fort Collins in order to monitor the progress of its
program, shall develop a record keeping system which will
identify and assess DBE contract awards , prime contractors
progress in achieving DBE subcontract goals and other DBE
affirmative action efforts. Records and reports will be categorized
separately for minority and female owned firms and Section 8 (a)
contractors. The City shall maintain records showing:
1 . Procedures which have been adopted to comply with the requirements;
2. Awards to DBEs. These awards shall be measured against
projected DBE awards or DBE goals. To assist in this
effort , the City shall obtain regular reports from prime contrac-
tors on their progress in meeting contractual DBE
obligations.
3. Specific efforts to identify and award contracts to DBEs;
4. Records shall be available upon the request of an authorized
officer or employee of the government; and
5. The City shall submit reports conforming in frequency and format
to existing contract reporting requirements of the applicable
departmental element. Where no such contract reporting require-
ments exist, DBE reports shall be submitted quarterly. These
reports shall include as a minimum:
a. The number of contracts awarded to DBEs;
b. Description of general categories of contracts awarded to DBEs;
c. The dollar value of contracts awarded to DBEs;
d. The percentage of the dollar value of all contracts awarded
during this period which were awarded to DBE; and
e. Indication of whether and the extent of which the percentage
met or exceeded the goal specified in the application .
III - CHALLENGE AND COMPLIANCE PROCEDURES, ENFORCEMENT
A. CHALLENGE PROCEDURE
1. Any third party may challenge the socially and economically dis-
advantaged status of any individual (except an individual who has a
current 8 (1) certification from the Small Business Administration)
Presumed to be socially and economically disadvantaged if that
individual is an owner of a firm certified by or seeking certifica-
tion from the recipient as a disadvantaged business. The challenge
shall be made in writing to the City of Fort Collins .
2. With its letter, the challenging party shall include all informa-
tion availablt to it relevant to a determination of whether the
challenged pary is in fact socially and economically disadvantaged .
3. The City of Fort Collins shall determine, on the bais of the
information provided by the challenging party, whether there is
reason to believe that the challenged party is in act not socially
and disadvantaged.
i . If the City of Fort Collins determines that there is not
reason to believe that the challenged party is not socially
and economically disadvantaged , the City shall so inform
the challenging party in writing. This terminates the
proceeding.
ii . If the City determines that there is reason to believe that
the challenged party is not socially and economically dis-
advantaged, the City shall begin a proceeding as provided in
paragraphs (4) , (5) , and (6) of this Section .
4. The City shall notify the challenged party in writing that his or
her status as a socially and economically disadvantaged individual
has been challenged . The notice shall identify the challenging
party and summarize the grounds for the challenge. The notice
shall also require the challenged party to provide to the City.
within a reasonable time, information sufficient to permit the
recipient to evaluate his or her status as a socially and economi-
cally disadvantaged individual .
5. The City shall evaluate the information available to it and make a
proposed determination of the social and economic disadvantage of
the challenged party. The City shall notify both parties of this
proposed determination in writing, setting forth the reasons for
its proposal . The City shall provide an opportunity to the parties
for an informal hearing, at which they can respond to this proposed
determination in writing and in person ,
6. Following the informal hearing, the City shall make a final deter-
mination . The recipient shall inform the parties in writing of the
final determination , setting forth the reasons for its decision .
7 . In making the determinations called for in paragraphs (3) , (5) and
(6) of this Section , the City shall use the standards set forth in
Appendix B.
8. During the pendency of a challenge under this section , the presump-
tion that the challenged party is a socially and economically
disadvantaged individual shall remain in effect.
9. The final determination of the recipient under subparagraphs (3)
(i ) and (6) of this Section may be appealed to the Department by
the adversely affected party to the proceeding under the procedures .
B. COMPLAINTS
Any person who believes himself or herself, another person or any
specific class of individuals to be subjected to a violation of this
policy may file a complaint in writing, signed and dated with the
department. The complaint shall be filed no later than 180 days after
the date of an alleged violation or the dates on which continuing
course of conduct in violation of this policy was disclosed.
No recipient, contractor or other person shall intimidate, threaten,
coerce, or discriminate against any individual for the purpose of
interfering with any right or privilege secured by this part or
because he or she made a complaint, testified, assisted or participated
in any manner in an investigation , preceeding or hearing under this
part. But when such confidentiality is likely to hinder the investiga-
tion, the complainant shall be advised for the purpose of waiving the
privilege.
C. COMPLIANCE REVIEWS
All compliance reviews conducted after financial assistance has
been approved or contracts have been awarded begin with a desk audit .
The desk audit is a review of all material and information concerning
the Cit,y' s DBE performance.
An on site review includes interviews, visits to projects or facility
sites receiving DOT funds and inspection of any statistical or docu-
mentary materials relevant to the City' s performance which were not
available for review during the desk audit.
The City shall cooperate fully with these reviews . Failure or refusal
to furnish requested information or failure to cooperate is a violation
of this part.
IV - DBE DIRECTORY
The Colorado Minority Business Enterprises Directory, October, 1988, as
prepared by the Colorado Office of Minority Business Enterprise, 1550
Lincoln Street, Denver, Colorado, 80203, in cooperation with the Colorado
Highway Department, is hereby made a part of this plan for the City of Fort
Collins . Copies of the Directory are available for review in the office of
the City Clerk and Purchasing Division,
APPENDIX B - GUIDANCE FOR MAKING DETERMINATIONS OF
SOCIAL AND ECONOMIC DISADVANTAGE
(From the Federal Register/Vol . 48 , No. 141/Thursday, July 21 , 1983)
Before making any determination of social and economic disadvantage , the
recipient should always determine whether a firm is a small business
concern. If it is not , then the firm is not eligible to be considered a
disadvantaged business , and no further determinations need be made.
Under the definition of "socially and economically disadvantaged individ-
ual " used in Subpart D of this Part , members of the name groups (Black
Americans , Hispanic Americans, Native Americans, Asian Pacific Americans ,
and Asian Indian Americans) and persons certified as socially and econom-
ically disadvantaged by the Small Business Administration ( SBA) under the
SBA's section 8( a) program are presumed to be both socially and economical -
ly disadvantaged this presumption is rebuttable . This means that , as part
of a challenge to the eligibility of a firm a recipient has certified under
§23.69 of this regulation , a third party may present evidence that the
firm' s owners are not truly socially and/or economically disadvantaged ,
even though they are members of one of the presumptive groups. Recipients
must follow the challenge procedure in §23.69 when a challenge is made ,
using this Appendix for guidance in making determinations under that
procedure.
Under the regulation, anyone who has been certified by SBA under its 8(a)
program as socially and economically disadvantaged is automatically con-
sidered to be a socially and economically disadvantaged individual for
purposes of this regulation . However, the absence of an 8(a) certification
does not mean that an individual or firm is ineligible under this regula-
tion .
Recipients should continue the existing practice of making their own
judgements about whether an individual is in fact a member of one of the
presumptive groups. If an individual has not maintained identification
with the group to the extent that he or she is commonly recognized as a
group member, it is unlikely that he or she will in fact have suffered the
social disadvantage which members of the group are presumed to have
experienced. If an individual has not held himself or herself out to be a
member of one of the groups , has not acted as a member of a community of
disadvantaged persons, and would not be identified by persons in the
population at large as belonging to the disadvantaged group, the individual
should be required to demonstrate social disadvantage on an individual
basis.
For example, an individual could demonstrate that he had a Chinese an-
cestor. However, this hypothetical person has never lived in a Chinese-
American community, has held himself out to be white for driver' s license
or other official records purposes, has not previously claimed to be a
Chinese-American, and would not be perceived by others in either the
Chinese-American community or non-minority community to be a Chinese-
American (or any other sort of Asian-Pacific American) by virtue of his
appearance, culture, language or associations . The recipient should not
regard this individuals as an Asian-Pacific American .
Individuals who are not presumed to be socially and economically disadvan-
taged by virtue of membership in one of these groups may, nevertheless , be
found to be socially and economically disadvantaged on a case-by-case
basis. If an individual requests that his or her business be certified as
an eligible disadvantaged business under Subpart D, the recipient , as part
of its certification process , is responsible for making a determination of
social and economic disadvantage.
In making determinations of social and economic disadvantage, recipients
should be guided by the following standards, which have been adopted from
materials prepared by the SBA.
A. Social Disadvantage
1 . Elements of Social Disadvantage. In order to determine that an
individual is socially disadvantaged , the recipient must conclude
that the individual meets the following standards:
a. The individuals social disadvantage must stem from his or her
color; national origin; general physical handicap; long-term
residence in an environment is isolated from the mainstream of
American society, or other similar cause beyond the individ-
ual ' s control . The individual cannot establish social disad-
vantage on the basis of factors which are common to small
business person who are not socially disadvantaged . For
example, because of their marginal financial status , many small
businessess have difficulty obtaining credit through normal
banking channels. An individual predicating a social disadvan-
tage claim on denial of bank credit or his or her firm would
have to establish that the denial was based on one or more of
the listed causes, or similar causes-not simply on the individ-
ual ' s or the firm' s marginal financial status.
b. The individual must demonstrate that he or she has personally
suffered social disadvantage , not merely claim membership in a
non-designated group which could be considered socially disad-
vantaged . This can be achieved , for example, by describing
instances of discrimination which the individual ,has experi-
enced , or by recounting in some detail how his or her develop-
ment in the business world has been thwarted by one or more of
the listed causes or similar causes . As a general rule , the
more specific an explanation of how one has personally suffered
social disadvantage, the more persuasive it will be. In
assessing such facts, the recipient should place substantial
weight on prior administrative or judicial findings of discrim-
ination experienced by the individual . Such findings , however,
are not necessarily conclusive evidence of an individual ' s
social disadvantage; nor are they a prerequisite for establish-
ing social disadvantage.
c. Business History. The recipient should consider, as evidence
of an individual ' s social disadvantage, unequal access to
credit or capital ; acquisition of credit under unfavorable
circumstances; discrimination by potential clients ; exclusion
from business or professional organizations; and other similar
factors which have retarded the individual ' s business develop-
ment.
B. Economic Disadvantage
Recipients should always make a determination of social disadvantage
before proceeding to make a determination of economic disadvantage.
If the recipient determines that the individual is not socially
disadvantaged , it is not necessary to make the economic disadvantage
determination .
As a general rule, economically disadvantaged individuals are socially
disadvantaged individuals whose ability to compete in the free enter-
prise system has been impaired due to diminished capital and credit
opportunities, as compared to others in the same or similar line of
business and competitive market area who are not socially disadvan-
taged. In determining the degree of diminished credit and capital
opportunities of a socially disadvantaged individual , consideration
will be given to both the disadvantaged individual and the applicant
concern with which he or she is affiliated .
In considering the economic disadvantage of firms and owners, it is
important for recipients to understand that they are making a compara-
tive judgement about relative disadvantage . Obviously, someone who is
destitute is not likely to be in any position to own a business . The
test is not absolute deprivation, but rather disadvantage compared to
business owners who are not socially disadvantaged individuals and
firms owned by such individuals .
It is the responsibility of applicant firms and their owners to provide
information to the recipient about their economic situation when they
seek eligibility as disadvantaged businessess. Recipients are encour-
aged to become a knowledgeable as they can about the types of busi-
nessess with which they deal , so that they can make reasonably informed
comparison between an applicant firm and other firms in the same line
of business. Recipients are not required to make a detaiiled , point-by-
point , accountant-like comparison of the businessess involved . Recip-
ients are expected to make a basic judgement about whether the applicant
firm and its socially disadvantaged owner(s) are in a more difficult
economic situation than most firms ( including established firms) and
owners who are not socially disadvantaged .
Other Eligibility Considerations
It is very important for recipients to realize that making a determination
of social and economic disadvantage, standing alone, does not mean that a
firm is eligible. The recipient must also determine that the firm is 51
percent owned by socially and economically disadvantaged individuals and
that these individuals control the firm. In making these latter determina-
tions recipients should continue to follow 23 .51-23 .53 of Subpart C of 49
CFR Part 23.
If a firm or other party believes that any recipient' s social and economic
disadvantage determination is in error, the firm or party may make an
administrative certification appeal to the Department as provided in 49 CFR
§23.55.
SCHEDULE A
INFORMATION FOR DETERMINING
DISADVANTAGED BUSINESS ENTERPRISE ELIGIBILITY
1. NAME OF FIRM
2. Address of Firm
3. Phone Number of Firm
4. Indicate whether firm is sole proprietorship, partnership, joint venture,
corporation or other business entity (please specify)
5 . Nature of Firm' s Business
6 . Years Firm has been in business
7 . Ownership of firm: Identify those who own 5 percent or more of the
Firm' s ownership. Columns "e" and "f" need to be filled out only if
the firm is less than 100 percent minority owned .
a b c d e f
Name Race Sex Years of Ownership Voting
Ownership Percentage Percentage
With firms less than 100 percent minority owned , list the contributions of
money, equipment, real estate, or expertise of each of the owners.
8. Control of firm: (a) identify by name, race, sex, and title in the firm
those individuals (including owners and non-owners) who are responsible
for day-to-day management and policy decisionmaking, including, but not
limited to, those with prime responsibility for (if the firm has a
current 8 (a) certification from the Small Business Administration,
evidence of the certification should be attached) .
(1) Financial decisions
(2) Management decision, such as--
a. Estimating
b. Marketing and Sale
c. Hiring and firing of management personnel
d. Purchases of major items or supplies
(3) Supervision of field operation
9. For each of those listed in question 8,provide a brief summary of the
person' s experience and, number of ,years with the firm, indicating the
person' s qualifications for the responsibilities given him or her.
the responsibilities given him or her.
10. Describe or attached a copy of any Stock options or other ownership
options that are outstanding , and any agreements between owners or between
third parties which restrict ownership or control of minority owners.
11 . Identify any owner (see item 7) or management official (see item ) of
the named firm who is or has been an employee of another firm that has
an ownership interest in or a present business relationship with the name
firm. Present relationships include shared space, equipment, financing,
or employees as well as both firms having some of the same owners.
12. What are the gross receipts of the firm for each of the last two years?
Year ending $
Year ending $
13. Name of bonding company, if any;
Bonding limit
Source of letters of credit, if any
14. Are ,you authorized to do business in the state as well as locally,
including all necessary business licenses?
15. Indicate if this firm or other firms with any of the same officers have
previously received or been denied certification or participation as an
DBE and describe the circumstances. Indicate the name of the certifying
authority and the date of such certification or denial .
AFFIDAVIT
"The undersigned swears that the foregoing statements are true and correct
and include all material information necessary to identify and explain the
operations of (name of firm) as well as the
ownership thereof. Further, the undersigned agrees to provide through the
prime contractor or, if no prime, directly to the grantee current, complete
and accurate information regarding actual work performed on the project,
the payment therefor and any proposed changes , if any, of the foregoing
foregoing arrangements and to permit the audit and examination of books,
records and files of the name firm. Any material misrepresentation will
be grounds for terminating any contract which may be awarded and for
initiating action under Federal or State laws concerning false statement."
NOTE
lf, after filing this Schedule A and before the work of this firm is
completed on the contract covered by this regulation , there is any significant
change in the information submitted , you must inform the grantee of the
the change through the prime contractor or, if no prime contractor , inform
inform the grantee directly.
Signature
Name
Title
Date
Corporate Seal (where appropriate) .
Date
State of
County of
On this. dap of 19 before me appeared
(name) to me personally known, who being duly
sworn, did execute the foregoing affidavit, and did state that he or she
was properly authorized by (name of firm)
to execute the affidavit and did so as his or her free act and deed .
( Seal )
Notary Public
Commission Expires
SCHEDULE B
INFORMATION FOR DETERMINING
JOINT VENTURE ELIGIBILITY
(This form need not be filled in if all joint venture firms are owned by
Disadvantaged Business Enterprises.)
1 . Name of Joint venture
2 . Address of Joint venture
3. Phone number of Joint venture
4. Identify the firms which comprise the joint venture.(The DBE
partner must complete Schedule A.)
(a) Describe the role of the DBE firm in the joint venture _
(b) Describe very briefly the experience and business qualifications of
each non-DBE joint venturer:
5. Nature of the joint venture' s business
6. Provide a copy of the joint venture agreement.
1. What is the claimed percentage of DBE ownership?
8. Ownership of joint venture: (This need not be filled in if described in
the joint venture agreement provided by question 6.)
(a) Profit and loss sharing .
(b) Capital contributions, including equipment .
(c) Other applicable ownership interests.
9. Control of and participation in this contract , identify by name,race, sex,
and "firm" those individuals (and their titles) who are responsible for
day-to-day management and policy decisionmaking, including, but not limited
to those prime responsibility for:
(a) Financial decisions
(b) Management decisions, such as:
(1) Estimating
(2) Marketing and Sales
(3) Hiring and firing of management personnel
(4) Purchasing of major items or supplies
(c) Supervision of field operations
NOTE
If, after filing this Schedule B and before the completion of the joint
venture' s work on the contract covered by this regulation , there is any
significant change in the information submitted , the joint venture must
inform the guarantee , either directly or through the prime contractor if
the joint venture is a subcontractor.
AFFIDAVIT
"The undersigned swear that the foregoing statements are correct and include
all material information necessary to identify and explain the terms and
operation of our joint venture and the intended participation by each joint
joint venturer in the undertaking. Further, the undersigned covenant and
and agree to provide to the grantee current, complete and accurate
information regarding actual joint venture work and the payment therefor
and any proposed changes in any of the joint venture arrangements and to
permit the audit and examination of the books, records and files of the joint
venture, or those of each of joint venturer relevant to the joint venture,
by authorized representatives of the grantee of the Federal funding agency.
Any material misrepresentation will be grounds for terminating and contract
which may be awarded and for initiating action under Federal or State laws
concerning false statements ."
NAME OF FIRM NAME OF FIRM
SIGNATURE SIGNATURE
NAME NAME
TITLE TITLE
DATE DATE
Date
State of
County of
On this day of 19 , before me appeared
(name) to be personally known, who, being duly
sworn did execute the foregoing affidavit, and did state that he or she was
property authorized by (name of firm) _
to execute the affidavit and did so as his or her free act and deed .
Notary Public
Commission expires
( Seal )