MWBE Rules

St. Louis County Minority & Women-Owned Business Enterprise Program (M/WBE)

Rules Manual

DRAFT Version 2022

Revised April 30, 2022

Article 1: Purpose

1.1 - Overview

The M/WBE Program was enacted to ensure that County contracts are awarded in a manner that promotes economic inclusion of all segments of the business population, regardless of race, sex, or gender, to maximize the economic vitality and development of the County.

Article 2: Definitions

Business Day: any day other than a Saturday, Sunday, federal holiday, or the Juneteenth holiday. In computing any period of time described in this part, the day from which the period begins to run is not counted. In circumstances where County government offices are closed for part of the last day, the period extends to the next day on which County government offices are open.

Commercially Useful Function: a function performed when an MBE, WBE or DBE is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the D/M/WBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, installing (where applicable) and paying for the material itself.

Compliance: correct implementation of the requirements of SLCRO 107.071 and this document

Diversity Management Reporting System (DMRS): the web-based software system accessible to all prime contractors, subcontractors, regardless of tier, and County users that: automates communication with prime contractors via email regarding compliance issues; permits submission of monthly utilization reports online; tracks progress toward M/WBE goal attainment; and automates verification and concurrence of subcontractor payments.

Disadvantaged Business Enterprise (DBE): a for-profit small business concern:

That is at least 51% owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals; and

Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. DBE requirements are applicable in federally funded construction and public works projects.

USDOT-assisted contract: any agreement between the County and a prime contractor (at any tier) funded in whole or in part with United States Department of Transportation financial assistance.

Good Faith Efforts (GFE): endeavors to achieve an MBE, WBE or DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirement.

Labor hours: labor productivity, that is, units of work placed or produced per man-hour.

M/WBE incentive credits: a 15% incentive credit applied to the evaluation of professional services by M/WBE prime proposers. The incentive credit shall be applied during the evaluation process. The incentive credit is not applicable to solicitations for Engineering or Architectural Professional Services.

Minority: Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or other minorities defined by the Small Business Administration.

Minority business enterprise (MBE): a for-profit small business concern:

That is at least 51% owned by one or more minority individuals; and Whose management and daily business operations are controlled by one or more of the minority individuals who own it.

Normal industry practice: the act of a D/M/WBE performing the work or services prescribed in their contract in a manner normally performed by all contractors D/M/WBEs and non-D/M/WBEs –absent participation goals.

Prevailing wage rate: prevailing hourly rate of wages established for St. Louis County, Missouri, by the Missouri Department of Labor and Industrial Relations, as listed in the applicable Annual Wage Order, including the Annual Incremental Increases, and in accordance with the definition and application of Prevailing Hourly Rate of Wages in Chapter 290 RSMo, and County ordinances.

Primary industry classification: the North American Industry Classification System (NAICS) designation that best describes the primary business of a firm. The NAICS is available on the Internet at the U.S. Census Bureau Web site: http://www.census.gov/eos/www/naics/.

Prime consultant/contractor: the individual or business that has entered into an agreement with the County and that has the full responsibility for completing the terms of the agreement.

Reconsideration official: an individual or a group of individuals, designated by the Director of Administration, familiar with the requirements under Section 107.071 SLCRO for the M/WBE Program, bidding, construction or contracting matters who did not participate in the original determination under review.

Site of work: the physical place or places where the building or work called for in the contract will remain once the contract work has been completed and any other site where a significant portion of the building or work is constructed, provided that such site is established specifically for the performance of the contract or project.

Subconsultant: an entity to whom a prime consultant or subconsultant intends to subcontract any part of the services while remaining responsible to the County during the performance of the contract.

Subcontractor: an entity to whom a prime contractor or subcontractor intends to subcontract any part of the services while remaining responsible to the County during the performance of the contract.

Sub-prime contractor: an individual or business that has a contract with the prime contractor to perform a service or provide materials, equipment, or supplies as a part of the scope of work set forth in a prime contract with the County who subcontracts a portion of its contract to another subcontractor and/or supplier.

Utilization plan for construction services: the forms that outline the prime contractor’s commitment and confirmation to attain the participation goals on a County project. The Utilization Plan includes: a Subcontractor List that contains the names & address of all subcontractors, including MBEs and/or WBEs, certification type of all MBEs and WBEs, description of the work for each subcontractor, the dollar value of the work for each subcontractor, and the dollar amount applicable to the goals; a Notice of Intent (NOI) to perform as a Subcontractor Part I and Part II executed between the prime and/or subcontractor and all MBEs and WBEs scheduled to perform work on a County project; and Good Faith Efforts forms Part I and Part II outlining a prime contractor’s efforts/activities performed in response to not meeting the established goals on a County contract/project.

Women business enterprise (WBE): a for-profit small business concern:

(1) That is at least 51 percent owned by one or more individuals who are women; and

(2) Whose management and daily business operations are controlled by one or more of the female individuals who own it.

Workforce: individuals engaged in or available for work, in a particular county, area or in a particular company or industry.

Article 3: Administrative Requirements

The Minority Business Development and Compliance Office (M/WBE Program) shall manage and monitor the utilization of Minority-owned Business Enterprises (MBEs) and Women-owned Business Enterprises (WBEs) that participate on County projects funded in whole or part with County funds. In addition, the M/WBE Program assists with monitoring compliance on federally funded projects that utilize Disadvantaged Business Enterprises (DBEs).

3.1 - Staffing

The M/WBE Program is administered by a staff of six that includes one Administrative Assistant, one Director of Minority Business Development and Compliance, one Contract Compliance Manager, and three Contract Compliance Specialists. The duties and responsibilities for staff include the following:

3.1.1 - Director of Minority Business Development and Compliance

(1) Responsible for implementing all aspects of the M/WBE Program and ensuring that the County complies with Section 107.071 SLCRO.

(2) Gather and report statistical data and other information as required by Section 107.071 SLCRO.

(3) Review third party contracts and purchase requisitions for compliance with the program.

(4) Work with County departments in reviewing projects for scope, potential subcontracting opportunities and outreach to D/M/WBE firms.

(5) Identify contracts and procurements so that D/M/WBE goals are included in solicitations.

(6) Analyze County’s progress toward attainment and identify ways to improve progress.

(7) Approve program spending and monitor the program budget.

(8) Advise the County Executive and County Council on D/M/WBE matters and achievement.

(9) Provide outreach and assistance to D/M/WBEs regarding contracting opportunities, County bids, information on bonding and insurance, and guidance on how to do business with the County.

(10) Provide annual D/M/WBE training, educational seminars, and workshops.

(11) Collaborate with partner agencies, minority contracting advocacy groups, women trade organizations, AGC of Missouri, organized labor, community stakeholders, etc. on program changes and impacts.

(12) Monitor adherence to prompt payment for all subcontractors, including D/M/WBEs.

(13) Investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community and encourage prime contractors on County contracts to use these institutions.

(14) Review monthly workforce reports.

(15) Prepare an annual report detailing program accomplishments, barriers, and the calendar of events for the upcoming year. This report is to be delivered to the County Executive and County Council by January 31 of each year per Section 107.071 SLCRO

(16) Convene a public forum no later than February 28th of each year in order to report the State of the D/M/WBE Program to the public at large, minority contracting agencies & advocacy

groups, women contracting agencies & advocacy groups and other area stakeholders. This is required per Section 107.071 SLCRO.

3.1.2 - Administrative Assistant

(1) Maintain project records as outlined in the County’s retention policy.

(2) Schedule meetings on behalf of the M/WBE Program.

(3) Receive, time stamp, date and distribute M/WBE Program mail.

(4) Update and maintain M/WBE information on the County’s website.

(5) Maintain a department log on bids, solicitations, and qualification-based selections received.

(6) Create prime contracts in the DMRS and update payment information as projects progress.

(7) Prepare conference and travel documents and execute associated payments.

(8) Maintain and process various industry memberships-American Contract Compliance Association, St. Louis Council of Construction Consumers, Hispanic Chamber of Commerce, and MOKAN.

(9) Prepare event flyers, newsletters, and process registrations.

(10) Provide administrative support to the M/WBE Program

(11) Update policies, procedures and rules as needed.

(12) Make purchases and process invoices for the M/WBE Program.

3.1.3 - Contract Compliance Manager

(1) Develop minority-based subcontractor program to achieve goals and improve participation.

(2) Formulate compliance mechanisms as required by the ordinance.

(3) Perform meaningful outreach services to small, disadvantaged, minority and women firms to address capacity, growth, and sustainability.

(4) Input prime contractor and prime consultant payment information into DMRS.

(5) Monitor D/M/WBE participation throughout project duration.

(6) Review monthly workforce reports.

(7) Review liquidated damages assessments.

(8) Conduct monthly D/M/WBE participation and workforce meetings with prime contractors and County user departments.

(9) Distribute D/M/WBE utilization compliance audit summaries and workforce updates to primes and user departments.

(10) Monitor adherence to prompt payment for all subcontractors, including D/M/WBEs.

(11) Collaborate with Missouri Department of Transportation External Civil Rights on DBE projects.

(12) Collaborate with the City of St. Louis-Airport regarding MBE/WBE certification workshops.

(13) Perform oversight of Commercially Useful Function (CUF) reviews.

(14) Develop and participate in annual M/WBE educational training for internal and external stakeholders on an on-going basis.

(15) Coordinate with B2Gnow regarding DMRS changes and upgrades.

(16) Provide workflow approval for requisitions and invoices.

(17) Approve project closeouts.

3.1.4 - Contract Compliance Specialists (3)

(1) Participate in pre-bid and pre-construction meetings.

(2) Conduct Good Faith Effort evaluations.

(3) Update project files on a regular basis in the DMRS.

(4) Monitor D/M/WBE participation throughout project duration.

(5) Monitor and review workforce goals on all applicable projects.

(6) Attend monthly progress meetings.

(7) Conduct field visits to project sites.

(8) Conduct Commercially Useful Function (CUF) site visits and reviews.

(9) Review change orders and/or task orders associated with a contract.

(10) Review and approve D/M/WBE substitutions, terminations, and/or replacements.

(11) Monitor adherence to prompt payment for all subcontractors, including D/M/WBEs.

(12) Participate in annual M/WBE training and educational seminars and workshops.

(13) Prepare liquidated damages summaries and assessments.

(14) Prepare project close-outs.

3.2 - Business Advisory Council

Section 107.071(7) SLCRO establishes a Business Advisory Council (BAC) with members appointed by the County Executive and approved by resolution by the County Council. The BAC advises and makes program recommendations regarding the M/WBE program.

3.3 - Forms and Documentation

The M/WBE Program will develop forms or alternative documentation necessary for the implementation of the M/WBE program. Forms and documentation will be provided at pre-bid meetings and will be made available on the County’s website.

3.4 - Reconsideration Official

Upon receipt of a request for reconsideration by a prime contractor, the Director of Administration will designate a reconsideration official to review the request and make a recommendation. The reconsideration official will be a person familiar with the requirements of Section 107.071 SLCRO who did not participate in the original determination under review.

Article 4: M/WBE Participation

4.1 - M/WBE Goals (Construction)

The M/WBE director will establish participation goals for construction contracts. The goals are expressed as a percentage of the original contract amount and will apply throughout the term of the

contract unless the County determines otherwise as provided below. Federally funded construction projects will adhere to federal guidelines for DBE participation. A business that is certified as both MBE and WBE cannot count participation in both categories but must choose to be considered as either an MBE or WBE.

4.2 - Bid Discounts

The County applies a five percent bid discount to bids submitted by M/WBE prime bidders on all bids of $300,000 or less. This discount applies to construction, service, and supply purchases under the dollar threshold. In order for the M/WBE to qualify, the M/WBE prime bidder must be currently certified with one of the two accepted certifying agencies and include in its proposal a copy of the current M/WBE certification approval letter issued by the perspective agency. The bidder must be certified in the NAICS codes in which it plans to perform, and the bid discount does not extend to subcontractors. The discount is not increased in instances where the prime bidder is both an MBE and WBE. The bid discount is applied to bids submitted by certified bidders for evaluation purposes and does not alter the final contract award amount. For example, if a certified bidder submits a $100,000 bid, the bid is compared to other bids at a value of $95,000 (discount of 5%). If awarded, the contract will be issued for the bid amount of $100,000.

4.3 - Incentive Credits – Professional Services

The County applies an M/WBE incentive credit to certified M/WBE proposers that respond to professional services Requests for Proposals. A 15% incentive credit is awarded as part of the scoring process during evaluation. In order for the M/WBE to qualify, the M/WBE prime proposer must be currently certified with one of the two accepted certifying agencies and include in its proposal a copy of the current M/WBE certification approval letter issued by the perspective agency. The proposer must be certified in the NAICS codes in which it plans to perform, and the incentive credit does not extend to subconsultants. The County typically uses a 100 point/percent scoring tool to evaluate proposals, so M/WBE certified proposers receive 15 points/percent in the scoring process. Additional points are not awarded in cases where the prime proposer is both an MBE and WBE.

Article 5: Solicitations

County construction procurements are solicited by both the Administration Department - Procurement Division and the Transportation and Public Works Department (“T&PW Department”). Prior to posting bid notifications, user departments work with the M/WBE Program to discuss opportunities for M/WBE participation.

Further communication regarding M/WBE participation goals is made available during pre-bid meetings.

Article 6: Bid Documentation

6.1 - Utilization Plan

The Utilization Plan is submitted with bids and consists of the following:

6.1.1 - Commitment and Confirmation Form

This form outlines the bidder’s commitment to meet the established contract goals; confirms the information in the Subcontractor List is accurate and true; confirms information is consistent with quotes from firms scheduled to perform work on this project; and outlines the bidder’s intent to enter into written agreements with M/WBE subcontractors and submit those agreements for review prior to issuance of the Notice to Proceed (NTP).

6.1.2 - Subcontractor List-M/WBE Utilization Plan

This form contains the names and addresses of all subcontractors, including MBEs or WBEs scheduled to perform work on the project. A business that is certified as both MBE and WBE cannot count participation in both categories but must choose to be considered as either an MBE or WBE. If the business is submitted as both MBE and WBE on the utilization plan, and if the bidder does not designate which status should be applied to the business, the M/WBE Program shall credit participation in such a way that maximizes attainment of the participation goals without duplication

In addition to certification, subcontractors/subconsultants must perform a Commercially Useful Function, be certified for the goods/services provided, and meet the requirements listed in this Article. When counting materials and supplies, the following percentages shall be applied:

A) 100% of the cost of materials or supplies may be counted toward M/WBE goals when obtained from M/WBE manufacturers (Example: A manufacturer supplies materials with a dollar value of $50,000; on page 3 column I enter $50,000; the amount applicable to the goal is 100% or 1.0; multiply $50,000 by 1.0; the result is $50,000; on page 3 column (f) enter $50,000.)

B) 60% of the cost of materials or supplies may be counted toward M/WBE goals when obtained from a M/WBE regular dealer (Example: A regular dealer supplies material with a dollar value of $100,000; enter $100,000; the amount applicable to the goal is 60% (.60); multiply $100,000 by .60; the result is $60,000; enter $60,000.)

C) Materials or supplies purchased from an M/WBE which is neither a manufacturer nor dealer, the entire amount of fees or commissions charged for assistance may be counted toward M/WBE goals.

D) To obtain MBE and WBE percentages use the following equation:

Total MBE $ Value / Bidder’s Price = MBE%

6.1.3 - Notice of Intent (NOI) to perform as a Subcontractor Part I and Part II

This form is executed between the prime and all MBEs and WBEs scheduled to perform work on the contract. If sub-primes are bringing MBE or WBE participation to a contract, the sub-prime executes the NOI with all MBEs and WBEs scheduled to perform work directly for/with them on the contract and submits it to the prime for submission. On projects in which lower-tier subcontracting is allowed Part II of the NOI must be filled out with all information requested.

6.1.4 - Good Faith Efforts (GFE) Forms Part I and Part II

This form is required to be filled out when a prime contractor fails to meet the established goals on the contract. However all prime contractors are strongly encouraged to complete and submit Part I and Part II, with supporting documentation. The submittal may be evaluated if upon review of the Subcontract List-Utilization Plan, the M/WBE Program does not award full credit for the proposed participation Part I lists the M/WBEs the prime contractor contacted in addition to the M/WBEs proposed for utilization on this contract. Part II includes a list of GFE activities. This list is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant. If necessary, the prime contractor shall attach a narrative in addition to Parts I and II. Additionally, prime contractors may submit any additional information regarding MBE and WBE participation GFE to demonstrate the full extent of efforts undertaken

6.2 - Good Faith Efforts | Pre-Award

All bids are reviewed for responsiveness. If there are participation goals, part of the responsiveness review will include an assessment of whether the bid shows evidence of meeting the goals or of having made good faith efforts to do so. The bid may be found responsive regarding the participation goals in two ways:

• Document that it has obtained enough D/M/WBE participation to meet the contract goals; or

• Document that it made adequate good faith efforts to meet the goals, even though it did not succeed in obtaining enough D/M/WBE participation to do so. If the bidder documents adequate good faith efforts, the County will not deem the bid non-responsive on the basis that the bidder/proposer failed to meet the goals.

As part of this determination, the bidder or proposer must show that the D/M/WBE participants are providing a commercially useful function.

6.2.1 - Meeting the Participation Goals

To be credited with meeting the participation goals, the bidder must make a contractually binding commitment to meet the goals at the time of bid submission and provide the following before final contract award is made:

A) The names and addresses of D/M/WBE firms that will participate in the contract;

B) A description of the work that each appropriately qualified D/M/WBE will perform;

C) The dollar amount of the participation of each D/M/WBE participating;

D) A copy of the subcontractor D/M/WBE quotes submitted to prime contractor prior to bid submission;

E) Written commitment to use a D/M/WBE subcontractor whose participation it submits to meet a contract goal; and

F) Written confirmation from each listed D/M/WBE firm that it is participating in the contract and performing the kind and amount of work provided in the prime contractor’s commitment.

Documentation will be reviewed, and M/WBE Program staff may confirm submitted information via contact with the subcontractors.

6.2.2 - Insufficient Subcontractor Participation Goals

reviewed to determine whether sufficient efforts were made to meet the goals.

If the contract goals are not met, evidence of good faith efforts must be documented and submitted with the bid. The efforts will be reviewed to determine whether they were reasonably sufficient to meet the goals. The key in all instances will be the actual effort put forth. With bid submissions, include names, addresses, and telephone numbers of potential and actual subcontractors contacted, the prices and services negotiated, the dates of the contact and negotiations, and the bids or proposals received from all businesses that could provide a commercially useful function. Methods of documenting evidence of good faith include the following, as well as any other steps that would be reasonably be expected to result in increased participation.

(1) Advertising

Opportunities for M/WBEs must be advertised to certified M/WBEs in at least three digital and/or print media outlets. Advertising must provide sufficient time for potential M/WBEs to respond, and must commence at least four weeks prior to the bid due date, or as soon as possible after the bidder obtains the solicitation and determines what work to subcontract, and must continue until the final week before bids are due The opportunities may be published in general circulation media, minority-focused media, trade association publications, or traderelated publications, unless the solicitation expressly waives this requirement. With bid or proposal submissions, provide copies of all notices and advertisements published, as well as the dates and journals or sites where they were published. However, advertising alone, with no further actions taken, or late advertising that does not provide several weeks advance notice, will not constitute good faith efforts.

(2) Bidder/proposer's outreach to identify M/WBEs

Prime contractors are expected to communicate with and document their communication with M/WBEs. Contact may be through personal outreach as well as contact through networking events and business meetings Records of contacts should list the names of the M/WBEs, the individuals contacted, and dates of contact. However, correspondence logs alone will not meet the threshold for GFE, and bids must also include copies of written correspondence, with responses received.

(3) Contact follow-up

To receive GFE credit for follow up, prime contractors should return telephone calls and emails from potential subcontractors within two business days after receipt. The follow up may consist of various communication efforts, including telephone calls and email messages during normal business hours, and it must be documented, with logs that list the subcontractors contacted, as well as telephone numbers, email addresses, dates of contact, and notes regarding the outcome of each contact. Sending email blasts alone without followup telephone calls or in-person contact does not demonstrate good faith efforts for the purpose of this assessment.

(4) Identify items of work

Subcontracts may be broken down into discrete items or packages that M/WBEs may find economically feasible to perform. Document and include with bids specific items of work solicited from eligible businesses, showing the estimated dollar value and percentage of the total contract. The County may provide forms or templates for this information.

(5) Negotiate in good faith

Prime contractors may not reject bids, quotes, or proposals prepared by eligible businesses based on the subcontractor's standing within its industry, or on membership in a specific group, organization, association, and/or political or social affiliation.

(6) Offer assistance in securing financing, bonding, insurance, or competitive supplier pricing

Prime contractors must offer M/WBEs technical assistance regarding plans, specifications, and requirements of the contract in a timely manner to facilitate responses to solicitations.

(7)

Contractors may assist interested businesses in obtaining financing, bonds, and insurance required by the County. To receive credit, the contractor must provide a written description of the type of assistance, the company name, contact person and telephone number, and the name of the person who provided the assistance. If the contractor has assisted the M/WBE with obtaining competitive pricing of goods and supplies, it must also provide the name and contact information of any supplier that offered competitive pricing.

Provide timely written notification

If the sufficient subcontractors have not been found stwo weeks prior to the bid opening the prime should solicit subcontract bids and material quotes through direct written communication to relevant M/WBEs. Relevant businesses are those that could feasibly provide the goods or services required to satisfy the terms specified in the County's solicitation. When submitting bids, the contractor must provide the subcontractor’s name, subcontract items, the name and phone number of the individual who made the contact or wrote to the subcontractor, information on the availability of plans and specifications, and the date on which the subcontractor's written bid must be submitted to the prime contractor. Written notification shall include verification of the transmission date and the recipient's name, and the company name.

Article 7: M/WBE Participation Calculations

7.1 - MBE and WBE Certification

The County does not administer an M/WBE certification program. The County accepts the certifications of the City of St. Louis-Airport and the State of Missouri-Missouri Department of Transportation (MoDOT). Both agencies maintain directories identifying all firms eligible to participate as D/M/WBEs. The directories list the firm's name, address, phone number, and the type of work the firm has been certified to perform as a D/M/WBE. Directories are available at the following addresses below:

City of St. Louis-Airport:

https://flystl.diversitycompliance.com/?TN=flystl

State of Missouri-Missouri Department of Transportation (MoDOT):

https://www6.modot.mo.gov/MRCC/Home/PublicSearch

7.2 - Calculating Participation

Prime contractors are responsible for ensuring that D/M/WBE firms listed on the Utilization Plan are currently certified with one of the agencies listed above. If a firm is not certified by the agencies as a DBE, MBE or WBE at the time of the submission of the utilization plan, the firm’s participation will not count toward any M/WBE goals. Participation by firms listed on Utilization Plans but certified by other entities will not be counted toward goal attainment.

When a subcontractor D/M/WBE participates in a contract, the County will count toward D/M/WBE participation goals only the value of the work actually performed by the D/M/WBE. Credit will only be awarded for work performed corresponding to the NAICS Code applicable to the work that they are listed to perform. Credit will be awarded upon proof of payment for the applicable work from the Contractor to the D/M/WBE subcontractor.

7.2.1 - Subcontractor/Subconsultant D/M/WBE Participation Calculation

A) Credit may be given for the entire amount of that portion of a construction contract that is performed by a subcontractor D/M/WBE's own forces. Include the cost of supplies and materials obtained by the D/M/WBE for the work of the contract, including supplies purchased or equipment leased by the D/M/WBE (except supplies and equipment the D/M/WBE subcontractor purchases or leases from the prime contractor or its affiliate).

B) Credit may be given for the entire amount of fees or commissions charged by a subcontractor D/M/WBE firm for providing a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically required for the performance of a County contract, counts toward D/M/WBE goals, provided the fees are found to be reasonable and not excessive as compared with fees customarily allowed for similar services.

C) The dollar value of work performed under a contract with a certified firm after it has ceased to be certified can count toward the goal as long as the contract was executed prior to removal of the firm’s certification.

7.2.2 - Commercially Useful Function

Expenditures for a D/M/WBE count toward D/M/WBE goals only if the D/M/WBE is performing a commercially useful function on that contract.

A) A D/M/WBE performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the D/M/WBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a D/M/WBE is performing a commercially useful function, County will evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing and the D/M/WBE credit claimed for its performance of the work, and other relevant factors.

B) A D/M/WBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of D/M/WBE participation. Similar transactions, particularly those in which D/M/WBEs do not participate, will be examined.

C) If a D/M/WBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own work force, or the D/M/WBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, it is presumed that it is not performing a commercially useful function.

D) When a D/M/WBE is presumed not to be performing a commercially useful function the prime contractor or D/M/WBE subcontractor may present evidence to rebut this presumption. The County will review the evidence and may determine that the firm is performing a commercially useful function given the type of work involved and normal industry practices.

E) On County projects, decisions on commercially useful function matters are subject to review by the County but are not administratively appealable to the reconsideration official Commercial Useful Function infractions will be shared with the D/M/WBEs certification agency.

7.3 - Trucking Participation

The M/WBE Program monitors D/M/WBE trucking performance on County-funded and federally funded projects to determine participation.

7.3.1 - County Funded Projects

For County-funded projects, the following criteria are used to determine D/M/WBE trucking performance:

A) Credit may be awarded for participation by a D/M/WBE trucking firm for the total value of the transportation service it provides on the contract using trucks that it owns, insures, and operates, using drivers it employs.

B) Credit may be awarded for participation by a D/M/WBE trucking firm that leases trucks from another D/M/WBE trucking firm Credit may be awarded for the total value of the transportation services the D/M/WBE firm leasing the trucks provides on the contract.

C) When a D/M/WBE trucking firm leases from a non-D/M/WBE trucking firm, credit is limited to the fee or commission the D/M/WBE receives as a result of the lease arrangement. The fee or commission shall be indicated on the lease.

D) For any credit to be allowed for leased trucks, the leases must be submitted to St. Louis County before the trucking operations commence, and the leases must indicate that the D/M/WBE trucking firm has exclusive use and control over the trucks. Leased trucks must visibly display the name of the D/M/WBE trucking firm.

E) The D/M/WBE trucking firm must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting D/M/WBE goals.

F) The D/M/WBE trucking firm must itself own and operate at least one fully licensed, insured, and operational truck used on the contract.

G) The D/M/WBE may lease trucks from another D/M/WBE firm, including an owneroperator who is certified as a D/M/WBE. The D/M/WBE who leases trucks from another D/M/WBE receives credit for the total value of the transportation services the lessee D/M/WBE provides on the contract.

H) For purposes of this section, a lease must indicate that the D/M/WBE has exclusive use of and control over the truck.

I) A valid lease is required when the D/M/WBE leases equipment and must be provided to the County for approval. To be considered valid, the lease must include such items as the lessor’s name, list of trucks to be leased by vehicle identification number (VIN), and the agreed upon amount of the cost and method of payment.

7.3.2 - Federally Funded Projects

For projects where the County receives federal funding, the following criteria are used to determine trucking performance, per 49 CFR § 26.55(d):

A) The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting D/M/WBE goals.

B) The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the contract.

C) The DBE receives credit for the total value of the transportation services it provides on the contract using trucks it owns, insures, and operates using drivers it employs.

D) The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the contract.

E) The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE that leases trucks equipped with drivers from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE leased trucks equipped with drivers not to exceed the value of transportation services on the contract provided by DBEowned trucks or leased trucks with DBE employee drivers. Additional participation by nonDBE owned trucks equipped with drivers receives credit only for the fee or commission it receives as a result of the lease arrangement. The prime contractor must obtain written consent from the County prior to the trucking start of the trucking operation.

Example: DBE Firm X uses two of its own trucks on a contract. It leases two trucks from DBE Firm Y and six trucks equipped with drivers from non-DBE Firm Z. DBE credit would be awarded for the total value of transportation services provided by Firm X and Firm Y, and may also be awarded for the total value of

transportation services provided by four of the six trucks provided by Firm Z. In all, full credit would be allowed for the participation of eight trucks. DBE credit could be awarded only for the fees or commissions pertaining to the remaining trucks Firm X receives as a result of the lease with Firm Z.

F) The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE leases trucks from a non-DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of the trucking services.

Example: DBE Firm X uses two of its own trucks on a contract. It leases two additional trucks from non-DBE Firm Z. Firm X uses its own employees to drive the trucks leased from Firm Z. DBE credit would be awarded for the total value of the transportation services provided by all four trucks.

G) For purposes of this section, a lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE.

7.4 - Materials & Supplies

The County will determine the amount of credit awarded to a firm for the provisions of materials and supplies (e.g., whether a firm is acting as a regular dealer or a broker) on a contract-by-contract basis.

(1) If the materials or supplies are obtained from a D/M/WBE manufacturer, 100 percent of the cost of the materials or supplies may count towards D/M/WBE goals. For purposes of this section, a manufacturer is a firm that operates or maintains a factory or establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications.

(2) If the materials or supplies are purchased from a D/M/WBE regular dealer, 60 percent of the cost of the materials or supplies may count toward D/M/WBE goals.

a. For purposes of this section, a regular dealer is a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles, or equipment of the general character described by the specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business.

i. To be a regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question.

ii. A person may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning, operating, or maintaining a place of business as provided in this section if the person both owns and operates distribution equipment for the products. Any

supplementing of regular dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis.

iii. Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not regular dealers within the meaning of this section

b. M/WBE concrete mixer trucks will be considered suppliers and will receive 60% goal credit on county funded projects. The County does not consider the mixer truck itself as a factory or establishment.

(3) With respect to materials or supplies purchased from a D/M/WBE which is neither a manufacturer nor a regular dealer, the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on a job site, may count toward D/M/WBE goals, provided the County determines the fees to be reasonable and not excessive as compared with fees customarily charged for similar services. The County will not count any portion of the cost of the materials and supplies themselves toward D/M/WBE goals.

Article 8: Bid Award (Construction)

8.1 - Determination of Bid/Proposal Responsiveness

On completing the Utilization Plan review of the apparent low bidder, the M/WBE Program Director makes a recommendation to the Procurement Director and the user department on whether to award. If a bidder provides the required participation or is documents sufficient good faith efforts as to why it cannot provide the required level of participation, then the M/WBE Program Director may recommend award. The recommendation to award will outline the evaluated and the accepted MBE and WBE participation percentages.

If a bidder does not provide the required participation goals, and is unable to document sufficient good faith efforts to account for the shortfall, then the M/WBE Program Director will conclude that the bidder has not complied with M/WBE requirements and will submit a recommendation not to award, outlining the bidder’s failure to meet participation requirements and make sufficient good faith efforts. Upon finding the apparent low bidder nonresponsive in regard to M/WBE participation, the bidder is informed and may request an administrative reconsideration . The M/WBE Program Office will review participation and good faith efforts for the next apparent low bidder and provide recommendation as outlined above. This process will continue until the M/WBE Program recommends a bidder or until there are no remaining bidders

For transportation projects, the Director of Transportation and Public Works will take into consideration the recommendation by the M/WBE Program in determining a responsive bidder or proposer.

For non-transportation projects, a user department will take into consideration the recommendation by the M/WBE Program in determining a responsive bidder or proposer.

Upon receiving recommendations from both the M/WBE Program and the user department, the Procurement Director will determine the lowest responsive and responsible bidder.

8.2 - Administrative Reconsideration of Good Faith Efforts Determination

If the County determines that the apparent low bidder has failed to make a good faith effort to meet the M/WBE goals, the County will, before awarding the contract, provide the bidder an opportunity for administrative reconsideration.

Notification that an apparent low bidder has not met M/WBE participation and has not provided sufficient good faith efforts will be sent to the bidder and provide a date for an administrative reconsideration, which will take place no less than three business days from the date of the letter transmission.

Within the three business days of being informed by the County that it has failed to make a good faith effort to meet the M/WBE goals, a bidder may indicate its decision to participate in the administrative reconsideration process by submitting a notification in email to the M/WBE Program (diversityincountyprocurement@stlouisco.com) and the Procurement Director The reconsideration official will not have participated in the original determination of insufficient good faith efforts. The determination by the M/WBE Program will be final if a request to participate in the administrative reconsideration process is not transmitted by the bidder during the three business day period.

At the administrative reconsideration, the bidder will have the opportunity to provide written documentation or arguments concerning the issue of whether it made a good faith effort to meet the M/WBE goals. The reconsideration official will consider information from both the bidder and the M/WBE Program

Within two business days, or as soon as feasible, the reconsideration official will send the Director of Procurement a written recommendation on the reconsideration, explaining the basis for finding that the bidder did or did not make a good faith effort to meet the M/WBE goals.

The M/WBE Program will review the recommendation of the reconsideration official and may modify its original decision.

If the apparent low bidder is deemed non-responsive, then the above outlined process may be repeated until a bidder is deemed responsive and a contract is awarded.

Article 9: Contracting

9.1 - M/WBE Participation

In the event that a bidder is not able to meet the subcontractor participation percentages, but is able to provide acceptable good faith efforts, then the subcontractor participation requirements defined in the letter of recommendation by the M/WBE Program shall become the contract participation requirements.

While the subcontractor participation amounts can exceed the County’s goals, the percentage used in determining breach of contract is limited to the goals established by the M/WBE program director.

9.2 - Flow Down Requirements

The County will include in its prime contracts flow down requirements regardless of tier.

9.3 - Mobilization Payments

When the prime contractor requests mobilization, all subcontractors, regardless of tier, shall be included in the initial request if they also request mobilization. Once mobilization payments are approved for the prime contractor, the subcontractor shall be paid a reasonable amount not to exceed 5% of the amount of their contract no later than five business days before they are required to mobilize to start their contracted work.

9.4 - Change Orders

M/WBE goal obligations extend to all contract work covered by change orders. When contract work is added, the prime contractor or prime consultant must make good faith efforts to secure M/WBE subcontractors insofar as feasible,to perform the additional contract work so that the goal percentages committed to in the contract are maintained or the goals are achieved.

When contract work is deleted, the prime contractor or prime consultant should utilize good faith efforts to ensure that the goal percentages committed to in the contract are maintained despite the decrease in overall contract work.

The prime contractor is required to fill out the Supplemental Change Order Form which details the names of the subcontractors impacted, provides a brief description of the work and dollar amount of the change and the amended contract value. The prime will submit the Supplemental Change Order Form along with any additional documents required to the user department. The department is required to submit a copy of the change order along with the Supplemental Change Order to the M/WBE Program. All change orders must be approved by the M/WBE Program prior to work continuing.

9.5 - Construction Change Directives

Because changes implemented by a CCD could also impact M/WBE participation goals, the County project manager who signs the CCD is required to obtain approval from the M/WBE Program in writing, before issuance of the CCD. The completed CCD must be forwarded to the M/WBE Program. The issuance of a CCD must be approved by the M/WBE Program prior to transmission of the CCD to the prime contractor. When a CCD is issued, the prime contractor must utilize good faith efforts to secure M/WBE subcontractors to perform additional contract work so that the goal percentages committed to in the contract are maintained or the goals are achieved.

9.6 - Prompt Payment

9.6.1 - Section 34.057 RSMo

The County is subject to and complies with Section 34.057 RSMo, Missouri’s Public Prompt Payment Act, and will monitor payment of both M/WBE and non-M/WBE subcontractors

9.6.2 - Documentation of Payment

Proof of payment to subcontractors and suppliers is required in the DMRS within ten business days after payment to the subcontractors or suppliers. The prime contractor must update DMRS with information regarding amount and date of payments to subcontractors and suppliers. Signed lien wavers must be submitted in the DMRS as payments are dispersed to contractors and material suppliers. The M/WBE Program will review proof of payment and will not approve a subsequent payment until all subcontractors and suppliers are paid in accordance with the Prompt Payment Act.

Article 10: Post Award Participation (Construction & A&E Services)

After contract award, a prime contractor is required to maintain approved participation levels throughout project duration and document those efforts as required. The County has inserted into each prime contract a clause stating that failure by the contractor to carry out the requirements of this section is a material breach of the contract and may result in the termination of the contract or such other remedies set forth.

The County requires the contractor awarded the contract to make available upon request a copy of all D/M/WBE subcontracts. The subcontractor shall ensure that all subcontracts or agreements with D/M/WBEs to supply labor or materials require that the subcontract and all lower tier subcontractors be performed in accordance with this section’s provisions.

10.1 - Subcontractor Substitution

After contract award, a prime contractor cannot substitute a D/M/WBE subcontractor listed within its approved Utilization Plan without prior written consent of the County. This includes, but is not limited to, instances in which a prime contractor/prime consultant seeks to perform work originally designated for a D/M/WBE subcontractor with its own forces or those of an affiliate, a non-D/M/WBE firm, or with another D/M/WBE firm. The County includes in each prime contract agreement a provision stating:

(1) That the contractor shall utilize the specific D/M/WBEs listed in the submitted and approved Utilization Plan to perform the work and supply the materials for which each is listed unless the contractor obtains the County’s written consent not to; and

(2) That, without the County’s consent to substitution, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed D/M/WBE.

(3) The County will provide such written consent only if the County agrees that the prime contractor has good cause to terminate the D/M/WBE firm.

10.1.1 - Subcontractor Substitution Good Cause

Good cause for the substitution of subcontractors is defined as:

(1) The listed D/M/WBE subcontractor fails or refuses to execute a written contract;

(2) The listed D/M/WBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided, however, that good cause does not exist if the failure or refusal of the D/M/WBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime contractor;

(3) The listed D/M/WBE subcontractor fails or refuses to meet the prime contractor’s reasonable, nondiscriminatory bond requirements;

(4) The listed D/M/WBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;

(5) The County has determined that the listed D/M/WBE subcontractor is not a responsible subcontractor;

(6) The listed D/M/WBE subcontractor voluntarily withdraws from the project and provides written notice of its withdrawal;

(7) The listed D/M/WBE is ineligible to receive D/M/WBE credit for the type of work required;

(8) A D/M/WBE owner dies or becomes disabled with the result that the listed D/M/WBE contractor is unable to complete its work on the contract; or

(9) Other documented good cause that compels the termination of the D/M/WBE subcontractor. Good cause does not exist if the prime contractor seeks to terminate a D/M/WBE it relied upon to obtain the contract so that the prime contractor can self-perform the work for which the D/M/WBE contractor was engaged or so that the prime contractor can substitute another D/M/WBE or nonD/M/WBE contractor after contract award.

10.1.2 - Notification of Intent to Substitute

In the event the prime contractor elects to terminate a D/M/WBE subcontractor, the prime contractor must give notice in writing to the D/M/WBE subcontractor, with a copy to the County, of its intent to request to terminate, replace and/or substitute, and the reason for the request. The notice should be sent via email (diversityincountyprocurement@stlouisco.com) and uploaded to the DMRS. In addition to post-award terminations, the provisions of this section apply to pre-award deletions of or substitutions for D/M/WBE firms put forward by proposers in negotiated procurements.

The prime contractor shall give the D/M/WBE subcontractor five business days to respond to the prime contractor's notice and advise the County and the contractor of the reasons, if any, it objects to the proposed termination of its subcontract agreement. Response should be sent to the M/WBE Program via email (diversityincountyprocurement@stlouisco.com) and uploaded to the DMRS. The County may, at its discretion, shorten the response period.

10.2 - Post Award Good Faith Efforts

When a D/M/WBE subcontractor/subconsultant is terminated or fails to complete its work on the contract for any reason, the County requires the prime contractor/prime consultant to provide replacement participation for equivalent amount of work or a combination of replacement participation and good faith efforts. These good faith efforts shall be directed at finding another D/M/WBE to perform at least the same amount of work under the contract as the D/M/WBE that was terminated, to the extent needed to meet the requirements of the contract

Efforts to find another D/M/WBE subcontractor/subconsultant shall be documented by the prime contractor. The County requires the prime contractor to submit the following documents within five business days of request of substitution or termination. The County will review the documentation listed below and provide a written determination to the contractor stating whether good faith efforts have been demonstrated.

10.2.1 - Notice of Intent (NOI) to perform as a Subcontractor Part I and Part II

This form shall be executed between the prime and the proposed MBEs and WBEs scheduled to perform work on this contract. If sub-primes are bringing MBE or WBE participation to a contract the sub-prime shall execute the NOI with all MBEs and WBEs scheduled to perform work directly for/with them on the contract and submit to the prime for submission. On projects in which lowertier subcontracting is allowed Part II of the NOI must be filled out with all information requested.

10.2.2 - Good Faith Efforts (GFE) Forms Part I and Part II

This form is used when a prime contractor fails to meet the established goals with the substitution subcontractors on the contract. Part I lists the M/WBEs the prime contractor contacted in addition to the M/WBEs proposed for utilization on this contract. Part II includes a list of GFE activities. This list is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant. If necessary, the prime may attach a narrative on company letterhead in addition to Parts I and II. Additionally, the prime contractor can submit any additional information with regards to their MBE and WBE participation GFE deemed necessary. Post-award GFE evaluation will be based on the same criteria outlined in Section 6.3.2

Article 11: Workforce Diversity

11.1 - Workforce Goals for Minorities, Women & County Residents

In efforts to develop and maintain a highly skilled, employment ready workforce that supports and enhances the economic health of the County and its local business communities, interim workforce participation goals (equal opportunity goals) are established and expressed in percentages of total hours of employment and training of women and minorities used on County contracts and projects. On each public works contract, and County incentivized project for which the design team's estimated base value of the contract is $1,000,000.00 or more, the workforce goals are as follows:

(1) 25% of all contract labor hours are to be performed by minorities;

(2) 7% of all contract labor hours are to be performed by women; and

(3) 23% of all contract labor hours are to be performed by persons who reside in zip codes that comprise St. Louis County.

The workforce is a cumulative effort and applicable to all contractors, regardless of tier, performing work on the project. Therefore, one contractor should not be unduly burdened with meeting the workforce requirement.

11.2 - Applicable Trades

Contractors are required to report on all trades working on the project identified within the most current wage order issued on the project. It is the responsibility of the prime contractor to ensure that all contractors performing work on the project have obtained a copy of most current wage order from issued on the project.

11.3 - Reporting Requirements

Contractors, regardless of tier, are required to report their workforce monthly on each project in which the workforce requirement is applicable. Reports shall be made on the DMRS.

11.3.1 - Workforce Notification Form

Contractors with hiring halls and/or part of organized labor unions must submit this notification to their perspective hall notifying the hall of the County workforce requirement, name of the project, start and completion dates, and Office of Minority Business Development and Compliance contact. This form assists the hiring hall with examining their roster to see if any available workers meet any of the requirements.

11.3.2 - Pre-Construction Workforce Plan

This plan is to be filled out by the prime contractor and submitted via the DMRS or to the T&PW Department prior to the pre-construction meeting. This report provides a preliminary projection of the workforce and gives the prime contractor an opportunity to work with its workforce and that of its subcontractors to attain the goals established on a contract.

11.3.3 - Employee Roster Data Sheet

This form is to be filled out by all contractors, regardless of tier, performing work on the contract. All contractors are required to fill in all areas of the form - company information, employee first and last name, employee address with zip code, employee ethnicity, employee gender and employee trade. This form is to be submitted to the M/WBE Program via DMRS prior to the start of construction. Additions to the list must be sent directly to the M/WBE Program via DMRS

11.4 - Monitoring

The M/WBE Program will monitor workforce monthly during project site visits and may convene a monthly meeting with the prime contractor and review submitted monthly reports for all contractors, regardless of tier, performing work on the contract and address any issues or concerns. The M/WBE Program will work with prime contractors experiencing barriers to develop a plan to address potential shortfalls.

Article 12: Contractor Reporting

12.1 - Diversity Management Reporting System (DMRS)

The County utilizes the Diversity Management Reporting System, a web-based software system that is accessible to all prime contractors and subcontractors/subconsultants, to report payment made to subcontractors and confirmation of those payments. Key features of the system include automated communication with contractors via email regarding compliance issues; submission of contractor’s monthly utilization reports online, and automated tracking of their progress towards meeting the M/WBE participation goals; automatic verification and concurrence of subcontractor payments, and elimination of paper-based reporting. This application is used for monitoring M/WBE utilization on a contract-by-contract basis. It also provides links to the current Directory of Minority and WomenOwned Business Enterprises certified by the City of St. Louis-St. Louis Lambert International Airport and the Missouri Department of Transportation.

Prime contractors are required to utilize the DMRS as described in this section. Subcontractors, suppliers, and subconsultants are also required to utilize the DMRS. Access to the system is free and ongoing online training classes are available. Access is via the website https://stlouisco.diversitycompliance.com.

12.2 - Compliance Reporting

Using the DMRS, prime contractors shall submit proof of payment to subcontractors and suppliers within ten business days after payment to subcontractors or suppliers. The prime contractor must update DMRS with information regarding amount and date of payments to subcontractors and suppliers Signed lien waivers must be submitted in the DMRS as payments are dispersed to subcontractors, subconsultants and material suppliers. Subcontractors, suppliers, and subconsultants are required to confirm payments with the DMRS within three business days

Article 13: Compliance

It is the primary responsibility of the prime contractor to ensure that the D/M/WBE is performing a Commercially Useful Function (CUF) The County has oversight responsibility to ensure that the prime contractor/prime consultant has effectively met this responsibility under its contract. Contractors, D/M/WBEs, and County employees must cooperate in carrying out this responsibility.

13.1 - Office Visits

In reviewing CUF, a representative from the M/WBE Program will conduct CUF office visits to D/M/WBE principal owners to review additional documents associated with County contracts, view and record equipment stored at the D/M/WBEs principal office and any additional storage locations and examine any third-party arrangements (if applicable). CUF visits may be scheduled or unscheduled. Additionally, the M/WBE Program is not required to notify the prime contractor of the CUF visit.

13.2 - Site Visits

County Contract Compliance Specialists will conduct routine project site visits. A site visit includes, but is not limited to, observing the work in progress a D/M/WBE firm is performing, interviewing the D/M/WBE’s workforce, witnessing material deliveries, recording D/M/WBE equipment on-site, observing the D/M/WBEs interaction with the prime, etc. The Contract Compliance Specialist may report to the construction office (if available), briefly meet with the project manager and/or project superintendent to get a project update, request the names of all contractors working on-site at the time of the visit and request an escort to the locations the D/M/WBE is performing work. The compliance team members request an escort as a safety precaution. The Contract Compliance Specialist may briefly interview D/M/WBE employees without interruption to the work in progress and record such interactions on the Project Site Visit form and/or within the DMRS for each project.

13.3 - Request for Documentation

In order to verify participation, the members of the M/WBE Program can request any and all pertinent documentation directly from D/M/WBE subcontractors on County projects. Such documentation includes, but is not limited to, D/M/WBE invoices requesting payment and/or applications for payment, trip tickets, material tickets and invoices, proof of payment to material suppliers, if applicable, proof of payment to any and all additional subcontractors that performed any of the contract work, fringe and benefits reports, lease/rental agreements for materials and/or equipment and proof of payment, payrolls records, employee rosters, equipment lists, etc. Failure to respond and/or provide requested documentation may result in a reduction of credit for D/M/WBE participation. Additionally, the D/M/WBE will be reported to its certifying agencies on a case-by-case basis.

Prime contractorss are required to maintain records and documents of payments to D/M/WBE for three years and these records and documents shall be made available for inspection upon request by any authorized representative of the County.

13.4 - Monitoring

The M/WBE Program staff will monitor work sites, attend pre-bid, pre-construction and progress meetings, review contracting records regularly, monitor payments to sub-prime contractors, subcontractors and suppliers, regardless of tier, to ensure payments are made in a timely manner, keep a running tally of actual payments to D/M/WBE firms for work committed to them and review all elements of the work to be performed, including supervision of employees, employee payroll and

equipment used by the D/M/WBE firm. The County will monitor the following throughout the life of the contract:

13.4.1 - Management

The D/M/WBE must manage the work that has been contracted to its firm. Management includes, but is not limited to, scheduling work operations; ordering equipment and materials; preparing and submitting certified payrolls; hiring and firing employees. The D/M/WBE owner must supervise daily operations, either personally, or with a full time, skilled and knowledgeable superintendent employed by and paid wages by the D/M/WBE. The superintendent must be present on the job site and under the D/M/WBE owner’s direct supervision. The D/M/WBE owner must make all operational and managerial decisions for the firm. Mere performance of administrative duties is not considered supervision of daily operations.

13.4.2 - Workforce

In order to be considered an independent business, a D/M/WBE must keep a regular workforce. D/M/WBEs cannot "share" employees with non-D/M/WBE contractors, particularly the prime contractor. The D/M/WBE shall perform its work with employees normally employed by and under the D/M/WBE’s control. All work must be performed with a workforce the D/M/WBE controls, with a minimum of 30% of the work to be performed by the D/M/WBE’s regular employees, or those hired by the D/M/WBE for the project from a source, such as a labor union. The D/M/WBE, in all instances, must have direct supervision over all of its employees. The D/M/WBE must be responsible for payroll and labor compliance requirements for all employees performing on the contract and is expected to prepare and finance the payrolls. Direct or indirect payments by any other contractor are not allowed. The D/M/WBE must perform at least 30% of the total cost of its contract with its own workforce. The D/M/WBE must not subcontract a greater portion of the work than would be expected on the basis of normal industry practice for the type of work involved.

13.4.3 - Equipment

A D/M/WBE may lease specialized equipment from a contractor, excluding the prime, if it is consistent with normal industry practices and at rates competitive for the area. The lease must specify the terms of the agreement. The lease must be for a defined period of time and involve a specialized piece of equipment to be used at the job site. The lease may include an operator for the equipment who remains on the lessor's payroll if this is a generally acceptable practice within the industry. The operation of the equipment must be subject to the full control of the D/M/WBE. The D/M/WBE shall provide the operator for non-specialized equipment and is responsible for all payroll and labor compliance requirements. A separate lease agreement is required. All lease agreements must be submitted for review and approved by the County prior to the D/M/WBE starting the work. On a case-by-case basis, the County may approve the D/M/WBE to lease a specialized piece of equipment from the prime. However, the County shall not credit the lease amount in calculation of the goal attainment. Equipment leased and used by the D/M/WBE with payment deducted from the prime contractor's payments to the D/M/WBE is not allowed.

13.4.4 - Materials

For a D/M/WBE contractor (furnish and install) to receive credit for supplying materials, the D/M/WBE must perform the following four functions:

(1) negotiate price;

(2) determine quality and quantity;

(3) order the material; and

(4) pay for the material.

If the D/M/WBE does not perform all of these functions, it has not performed a CUF with respect to obtaining the materials, and the cost of the materials may not be counted toward the goals. If standard industry practices in certain areas of the country allow no subcontractor to perform all four functions enumerated above (e.g., manufacturers will only negotiate with a prime, thereby eliminating the D/M/WBE’s ability to negotiate the price), the “furnish” portion of the transaction does not lend itself to the performance of a CUF by the D/M/WBE, and credit cannot be given for the acquisition or cost of the materials.

13.4.5 - Performance

The D/M/WBE must be responsible for the performance, management, and supervision of a specific element of the work, in accordance with normal industry practice.

Article 14: Enforcement

The County is not a D/M/WBE certifying agency. Certification and commercially useful function are separate and distinct issues. Certification decisions address the nature of a firm's ownership and structure while CUF primarily concerns the role a firm has played in a particular transaction. Even if the certification process has identified the D/M/WBE’s ability to perform as a contractor, regular dealer, or manufacturer, it is important to review and determine what and how a D/M/WBE actually performs during the performance of the contract. A D/MWBE's repeated failure to perform a CUF will be forwarded to the D/M/WBE’s certifying agency - City of St. Louis-Airport or on federally assisted projects to Missouri Department of Transportation (MoDOT). In cases of deliberate attempts to circumvent the intent of the M/WBE Program, or fraud, these actions may lead to criminal prosecution of both the prime contractor/prime consultant and the D/M/WBE.

The prime contractor/prime consultant is ultimately responsible for ensuring that a D/M/WBE performs a commercially useful function. Failure of a D/M/WBE to perform a CUF may result in the following:

(1) Denial or limiting credit towards the contract goal;

(2) Requiring the prime to make GFE to replace the DBE to meet the goal on remaining work;

(3) Withholding progress payments;

(4) Terminating the contract;

(5) Adverse consideration in future contracts; and/or

(6) Debarment

14.1 - USDOT Contracts

On USDOT-assisted contracts the Director of Minority Business Development and Compliance and assigned staff will notify USDOT of any false, fraudulent, or dishonest conduct in connection with the program so the proper steps can be taken (e.g., referral to the Department of Justice from criminal prosecution, referral to the USDOT Inspector General, or actions such, as suspension or debarment proceedings as provided from in 2 CFR 180 and 1200.) Additionally, the County may consider such conduct in the consideration of eligibility for award of future contracts.

14.2 - Dispute Resolution

The County encourages prime contractors and M/WBE subcontractor to resolve disputes involving contract performance and invoicing by working together in a mutually respectful and beneficial manner. Conflicts arising between a prime contractor and an M/WBE subcontractor involving invoices and contract work performance that are not resolved in this manner may be reported to the M/WBE Program (diversityincountyprocurement@stlouisco.com) and the Procurement Director (purchasing@stlouisco.com) or Transportation and Public Works Director for Transportation contracts (transportationbids@stlouisco.com) by the prime contractor and/or the M/WBE. The M/WBE Program Director will hear information from the contractor and the M/WBE and will work with the parties to reach consensus via dialogue.

If the parties are unable to reach a consensus, the M/WBE Program Director may refer the unresolved dispute to the reconsideration official for mediation. Within three business days of referral of the dispute, the reconsideration official will hold a mediation session. At the mediation session, the prime contractor and M/WBE will have the opportunity to provide documentation and/or arguments concerning the dispute. The Procurement Director or Transportation and Public Works Director for Transportation contracts and a representative of the M/WBE Program will also have the opportunity to offer input.

If the parties are unable to reach a consensus during the mediation session, the reconsideration official will send via email to the Procurement Director or Transportation and Public Works Director for Transportation contracts and the M/WBE Program Director a written recommendation for resolution, explaining the basis for the findings.

The Procurement Director or Transportation and Public Works Director for Transportation contracts will take into consideration the recommendation by the reconsideration official in determining the final resolution. The result of this reconsideration process is not administratively appealable.

14.3 - Non-Compliance and Material Breach of Contract

In the event that a prime contractor fails to uphold the requirements of a contract, a material breach of contract occurs. A material breach of contract in regard to M/WBE subcontractor participation occurs in the following:

14.3.1 - Failure to Submit Documentation and Reporting

Failure on the part of the prime contractor to submit the required following documents and reports may be considered a material breach of contract:

(1) Sufficient proof of payment to subcontractors, subconsultants, and suppliers in the DMRS within 10 business days (can include lien waivers, canceled checks, and correspondence regarding payments including payment disputes)

(2) Trucking and Equipment list prior to a trucking operation (if applicable)

(3) Employment roster (primes, subcontractors, and trucking)

(4) Substitution Requests (if applicable)

(5) Change Orders (if applicable)

(6) Workforce workbook (at project start and monthly)

14.3.2 - Failure to Meet to Resolve Issues

Within five business days of receipt of written notice from the M/WBE Program the prime contractor must meet with an M/WBE Program representative to address issues relevant to the M/WBE Program

14.3.3 - Failure to Perform Post-Award Good Faith Efforts

A prime contractor must show honest and sincere intentions in maximizing M/WBE subcontractor participation. This includes post-award good faith efforts as outlined in this document to maintain the contracted M/WBE subcontractor participation goals. Material breach of contract may occur when the prime contractor is not maintaining required participation in execution of change orders and/or substitutions. It may also occur when a contractor is falling below the contracted participation goals or when the contract was awarded below the County’s established goals and good faith effort is not continuously performed to support the below-County goal award.

14.4 - 14.4 – Notice to Cure

Upon occurrence of a material breach of contract, the M/WBE Program will prepare an assessment that outlines the major issues with the contract as it relates to M/WBE participation. This assessment will be provided to the Procurement Director and user department for review or to the Director of Transportation and Public Works in the case of Transportation contracts

14.4.1 - Withhold Progress Payments

The M/WBE Program may request withholding of progress payments on County projects until the violations have been cured.

14.4.2 - Assessment of Liquidated Damages

The Director of Procurement may assess liquidated damages when prime contractors and consultants fail to cure one or more material breaches of contract. In determining the amount, no credit may be given for work performed by a M/WBE or County residents that were not approved by the M/WBE Program, unless the Director of Procurement, in his sole discretion, determines that the contractor acted in good faith.

Damages are assessed based upon the M/WBE goal shortfall but may not exceed the difference between the monetary value of the participation goals set by the contract and the amount actually paid to M/WBEs.

An amount equal to the calculation of damages will be withheld from the retention amount established to cover liquidated damages in addition to any other retainage on the contract. The Procurement Division will set aside the funds in a separate account in the County’s Enterprise Resource Planning (ERP) system to be used by the M/WBE Program for the purpose of providing business development, workforce training, and enhancement services for M/WBEs.

Article 15: Project Close-Out

Projects ready for close-out require review by the M/WBE Program. Review of M/WBE participation is completed once all requested and required M/WBE documentation that substantiates M/WBE participation on a project has been reviewed and is a part of the record. The M/WBE Program is required to certify that the prime contractor is compliant with all M/WBE requirements. Once the project close-out is reviewed by the M/WBE Program Director, a copy of the final M/WBE report and the compliance audit summary with any recommendations will be forwarded to the user department and project manager.

15.1 - Insufficient Participation at Close-Out

If the prime contractor does not achieve the full amount of participation required per the contract and was not able to provide sufficient post-award good faith efforts, the M/WBE Program may deduct from the remaining contract balance an amount equal to the value of the goal not achieved as liquidated and ascertained damages. The liquidated damages will be utilized in the same manner as provided in Section 14.5.2.

The contractor may request an administrative reconsideration of any amount deducted as damages

Article 16: County USDOT-Assisted Projects | Disadvantaged Business Enterprise (DBE)

16.1 - Code of Federal Regulation 49 CFR § 26

The County is a sub-recipient of federal financial assistance from USDOT-Federal Highway Administration through the Missouri Department of Transportation (MoDOT). The County enforces 49 CFR § 26 and any additional federal requirements on its contracts funded in whole or part with federal funds.

The DBE program and overall goal of MoDOT apply to all the federal funds in DOT-assisted contracts. This includes not only the federal funds expended in contracts that the primary recipient itself lets, but also the federal funds that sub-recipients let in DOT-assisted contracts. The primary recipient (MoDOT) is responsible for administering its DBE program and is legally accountable for expenditure of DOT financial assistance in accordance with federal requirements. Currently, the County does not have its own DBE Program, nor does it participate in the Missouri Unified Certification Program (MoUCP) also known as the Missouri Regional Certification Committee (MRCC). Therefore, MoDOT’s DBE program and overall goals apply to the DOT-assisted contracting activities of the County. If the County is bidding a DOT-assisted contract with subcontracting possibilities, then 49 CFR § 26 provisions concerning contract goals apply to that contract. These provisions include determining whether race-conscious measures are appropriate for a particular contract. Contract goals do not apply to certain kinds of contracts in any case, such as contracts for purchases of transit vehicles, or contracts in which there are no realistic subcontracting possibilities. In a case where it is appropriate for there to be a contract goal on a County contract, MoDOT may establish the goal for the County Alternatively, the County may set the contract goal in consultation with MoDOT. In either case, the County will follow the contract award procedures of 49 CFR § 26.53.

16.2 - 49 CFR § 26.53 Requirements

49 CFR § 26.53 states that when a DBE contract goal is established a contract must be awarded to a bidder/offeror who makes good faith efforts to meet it. In order to provide good faith efforts, the bidder/offeror must do either of the following:

(1) Document that it has obtained enough DBE participation to meet the goal; or

(2) Document that it made adequate good faith efforts to meet the goal, even though it did not succeed in obtaining enough DBE participation to do so. If the bidder/offeror does document adequate good faith efforts, a contract cannot be denied award on the basis that the bidder/offeror failed to meet the goal.

Bidding documentation is similar to that included within these policies and provides evidence of participation and/or good faith efforts. Guidance in determining good faith efforts is outlined in Appendix A of 49 CFR § 26.

16.3 - Counting DBE Participation on DOT-Assisted Contracts

The County shall count DBE participation on all DOT-assisted as outlined in 49 CFR § 26.55

16.4 - Commercially Useful Function

The County shall evaluate Commercially Useful Function as outlined in Section 7.2.2

16.5 - Change Orders

DBE goal obligation extends to all contract work covered by change orders irrespective of the tier. When contract work is added the prime contractor or prime consultant must utilize good faith efforts to secure DBE subcontractors and/or consultants to perform the additional contract work so that the goal percentages committed to in the contract is maintained or the goals are achieved.

When contract work is deleted, the prime contractor or prime consultant must utilize good faith efforts to ensure that the goal percentages committed to in the contract is maintained despite the decrease in overall contract work.

See Sections 9.4 and 10.2.

16.6 - Prompt Payment

49 CFR § 26.29 requires recipients of federal funds to mandate and enforce prompt payment of subcontractors, including the payment of retainage from the prime contractor to the subcontractor, within 30 days after the subcontractor's work has been satisfactorily completed (i.e., all the tasks called for in the subcontract have been accomplished and documented as required by the recipient). The prompt payment provision is intended to apply to subcontractors at all tiers. For example, on a prime contract that will take three years to complete, a subcontractor satisfactorily completes its work at the end of year one. The prime contractor must pay the retainage it has held to the subcontractor at the end of year one. The prime contractor cannot wait until the end of year three, when the prime contract has been completed and the recipient has paid its retainage to the prime contractor, to make this payment to the subcontractor.

The County unambiguously requires contractors to make retainage payments to their subcontractors as soon as the subcontractor's work has been satisfactorily completed. This is a race-neutral feature that applies to all subcontractors, not just DBEs. In ensuring compliance with the prompt payment provision, recipients of federal assistance may require prime contractors to provide information concerning payments to subcontractors, including retainage on a monthly basis through the Diversity Management Reporting System.

16.7 - Diversity Management Reporting System (DMRS)

The requirements regarding the DMRS apply to federally funded projects.

16.8 - Compliance

The compliance requirements outlined elsewhere apply to federally funded projects.

16.9 - Monitoring

The DBE program regulation 49 CFR § 26.37(b) requires that recipients monitor every contract on which DBE participation is claimed, including race-conscious DBE participation in response to a contract goal and race-neutral DBE participation, including professional service contracts. The County has demonstrated that it is monitoring every contract on which DBE participation is claimed by implementing the following measures: (1) developing a monitoring process to ensure that program participants are complying with 49 CFR § 26; (2) confirming that the monitoring process ensures that the work committed to a DBE is performed by the DBE to which the work was committed; and (3) confirming that the monitoring process includes a written certification that the County has reviewed contracting records and monitored work sites for this purpose. Written certification means that the County documents, dates, and signs a confirmation of its monitoring efforts. This written certification, whether in hard copy or electronic format, is made available to the relevant user department and/or MoDOT upon request.

The DBE program regulation 49 CFR § 26.37(b) requires that the County monitors work performed by all DBEs on every contract on which DBE participation is claimed. The DBE regulations do not permit the monitoring of only a sample or percentage of contracts on which DBEs participate.

In addition to a CUF review, M/WBE Program staff will:

(1) review the DBE’s subcontract to identify scope of work;

(2) take steps to observe the DBE on the job site to ensure that it is the same DBE that was committed to perform the subcontracted work and it is using its own resources to perform the scope of work;

(3) record the observations in a logbook or other document; and

(4) include a signature or email identification to meet the “written certification” requirement.

The purpose of the written certification is to acknowledge that the County has performed the required oversight and stands by its results. Therefore, all monitoring shall be documented, dated, and signed by the person who performed the review.

While it is important for a recipient to certify that it has provided the required monitoring and oversight of DBE participation during the contract close-out process, the County is required to document its efforts to perform on-site monitoring of a DBE’s performance during the contract performance per 49 CFR § 26.37(b). To provide effective oversight of DBE participation in each contract where DBE credit is claimed, the M/WBE Program will ensure that a trained Contract Compliance Specialist will monitor performance while the DBE is active on the jobsite and follow up by creating a written, signed document. The M/WBE Program will monitor a DBE’s participation in the early stages of contract performance to provide sufficient time for the County to respond and correct any identified compliance issues.

16.10 - 16.10 – USDOT Contracts and Fraud

Contractors may also be subject to penalties under the applicable Federal regulations.

Attachment 2 Organizational Chart