Disadvantaged Business Enterprise Policy

It is the policy of the Metropolitan Washington Council of Governments (COG) that Disadvantaged Business Enterprises, as defined in 49 CFR Part 26, shall have the maximum opportunity to participate in the performance of contracts for COG, and specifically those financed in whole or in part with Federal funds under grants, contracts or cooperative agreements. COG's policy is to seek out and include DBEs in the procurement process for all goods and services to the maximum practicable extent. Accordingly, COG encourages DBEs to compete for COG contracts and subcontracts, and encourages joint ventures between DBE and non-DBE firms who compete for COG contracts and subcontracts.

1. DBE PROGRAM LIAISON OFFICER

The Executive Director of COG has responsibility for implementing the DBE Program. The Director of Purchasing and Facilities is responsible for coordinating the DBE program with all COG program managers, maintaining all lists and files, as well as providing assistance to the Department Heads in reporting DBE activities to the Purchasing Office. All reports to Federal Agencies shall be coordinated by the Purchasing Office and shall be forwarded over the signature of the Executive Director.

The Executive Director, Department Heads, and all employees of COG share responsibility for encouraging and assisting DBEs in doing business with COG.

2. DEFINITIONS


1. "Disadvantaged Business" means a for-profit small business concern: (a) that 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 the stock of which is owned by one or more socially and economically disadvantaged individuals; and (b) whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.


2. "Small Business Concern" means a small business as defined in Section 3 of the Small Business Act and Small Business Administration regulations implementing the Act at 13 CFR Part 121.


3. "Socially and Economically Disadvantaged Individuals" means those individuals who are citizens of the United States (or lawfully admitted permanent residents ) and who are: (1)"Black Americans," which includes persons having origins in any of the Black racial groups of Africa; (2)"Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; (3) "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; (4) "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma, Vietnam, Laos, Cambodia, Thailand, Malaysia, Indonesia, Brunei, Macao, Fiji, Tonga, Kiribati, Juvalu, Nauru, the Federated States of Micronesia, the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific, the Commonwealth of the Northern Marianas, or Hong Kong; (5) "Asian-Indian Americans," which includes persons whose origins are from India, Pakistan and Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka; (6)"Women," regardless of race, ethnicity or origin; and (7) "Other," individuals found to be socially and economically disadvantaged by the Small Business Administration (SBA) pursuant to the Small Business Act.

   There is a rebuttable presumption that individuals in the above groups are socially and economically disadvantaged. COG may determine, on a case by case basis, other individuals who are socially and economically disadvantaged.

   
   
4. "Joint Venture" means an association of a DBE firm and one or more other firms to carry out a single for-profit business enterprise for which purpose they combine their property, capital, efforts, skills and knowledge, and in which the DBE is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership interest.

3. APPLICABILITY

This policy applies to the following:

1. All COG goods and services purchased through a formal procurement process by the issuance of Invitations For Bids (IFBs) or Requests for Proposals (RFPs); and


2. All COG goods and services purchased through an informal procurement process.

4. PROCEDURES
   
1. Identification of DBEs
1. The Purchasing Office will maintain a list of sources for information on DBEs in the metropolitan Washington area. The list will include sources for information on local DBEs that can be obtained from the District of Columbia Department of Small and Local Business Development, the Washington Metropolitan Area Transit Authority, the Maryland Department of Transportation, the Virginia Department of Minority Business Enterprise, other COG member jurisdictions, and other organizations that maintain DBE information relevant to COG's procurement needs. All COG staff responsible for procuring goods or services are required to confer with the Purchasing Office prior to issuing IFBs or RFPs to obtain information on identifying DBEs who are capable of providing the desired services or products.


2. With the assistance of the Purchasing Office, COG staff responsible for procuring goods or services will identify sources for information identifying DBEs prior to issuing IFBs or RFPs. COG will develop similar information before soliciting through an informal procurement process.


3. The Purchasing Office will be responsible for maintaining all records for each procurement that indicate the names of all firms who received IFBs or RFPs or informal solicitation requests, the bids or proposals received, the ranking of the bids or proposals received, and the name(s) of the firm(s) awarded the contract.


4. The COG employee responsible for any particular procurement will be responsible for coordinating the procurement with the Purchasing Office to ensure that DBEs have the maximum opportunity to submit bids or proposals.


5. Upon receipt of grants or contracts where subcontracting is required, COG will notify identified DBEs of COG's DBE Participation Policy and possible business opportunities with COG.


2. DBE Participation
   
1. COG encourages participation by DBE firms and by joint ventures between DBE and non-DBE firms in COG contracts and subcontracts to the maximum extent practicable. COG will state this policy in its RFPs and IFBs and will state its willingness to help any non-DBE firm identify DBEs for joint venture or subcontract opportunities.


2. COG will direct DBEs to state and local government agencies that provide technical assistance and other services to facilitate DBE participation in COG contracts and subcontracts.


3. COG does not discriminate on the basis of race, color, national origin, or sex in the award and performance of any contract or in the administration of its DBE Participation Program.


3. DBE Certification
   
1. For-profit DBEs submitting bids or proposals to COG must submit with the bid or proposal, or have on file at COG, a current (not more than one year old) notification of their certification as a DBE. The certifying agency must be a Federal, state or local government agency that regularly provides such certifications. COG may accept certification from private, nonprofit organizations at its discretion.


2. If, before or after the contract award, a bidder or offeror wishes to substitute a non-DBE subcontractor for a DBE subcontractor, the bidder or offeror must obtain prior written approval from the COG Contracting Officer.


4. Use Of DBE-Owned Financial Institutions

COG will make reasonable efforts to use DBE-owned financial institutions, and encourages prime contractors to use such institutions.

5. DBE Status Challenge Procedures

In accordance with 49 CFR Part 26, Subpart D, COG has established a procedure to allow third-parties to challenge a firm's status as a DBE in connection with a COG procurement. The challenge procedure is as follows:

1. A third party may present evidence to COG refuting the presumption of social and economic disadvantage of a challenged party. The challenge shall be made in writing to COG's Contracting Officer. The challenging party shall include all information available to it relevant to a determination of whether the challenged party is in fact socially and economically disadvantaged.


2. On the basis of the information provided by the challenging party, COG shall determine whether there is reason to believe that the challenged party is in fact not socially and economically disadvantaged.


If COG determines from the material provided by the challenging party that there is no reason to believe that the challenged party is not socially and economically disadvantaged, COG shall so inform the challenging party in writing. This shall terminate the proceedings.

2. If COG determines that there is reason to believe that the challenged party is not socially and economically disadvantaged, COG shall begin a proceeding as provided in paragraphs (3), (4), and (5) of this Section.


3. COG 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 COG, within a reasonable period of time, information sufficient to permit COG to evaluate his or her status as a socially and economically disadvantaged individual.


4. COG shall evaluate the information available to it and shall make a proposed determination of the social and economic disadvantage of the challenged party. Should COG determine that it does not have the tech­nical expertise to make this determination, it will request that the certifying agency, described in Section V.C. above, review the material provided by the challenging party and provide COG with a determination of the social and economic disadvantage of the challenged party. COG shall notify both parties of the proposed determination in writing, setting forth the reasons for its proposed determination. COG may provide an opportunity to the parties for an informal hearing, at which they can respond to the proposed determination in writing and in person.


5. COG shall make a final determination based upon the information presented to it. COG shall inform the parties in writing of the final determination, setting forth the reasons for its decisions.


6. In making the determinations called for in (3), (4), and (5) of this Section, COG shall use the standards set forth in 49 CFR 26, Subpart D.


7. During the time the challenge under this Section is pending, the presumption that the challenged party is a socially and economically disadvantaged individual shall remain in effect.



The final determination of COG under paragraph (4) may be appealed to the U.S. Department of Transportation or the appropriate federal or state funding agency by the adversely affected party under the procedures set forth in 49 CFR 26, Subpart E.



5. GOALS OF THE DBE PROGRAM
   
1. Overall DBE Participation Goals

COG will establish overall goals for DBE participation in COG procurements at the beginning of each fiscal year. To determine the overall DBE participation goals, COG will first determine, the total amount of contracting it proposes to do for the fiscal year. COG will also review its previous record for meeting its DBE participation goals and the DBE participation goals for such contracts set by similar entities in the Washington Metropolitan region including COG member jurisdictions. COG will establish an overall DBE participation goal based upon an analysis of the above information.

2. DBE Subcontract Goals

COG will set DBE goals for individual contracts that COG determines will have subcontracting possibilities. COG will determine the availability of DBEs in the fields in which subcontracts are to be awarded. COG will also review its record for meeting its DBE participation goals on past contracts and the DBE participation goals set by similar entities in the Washington Metropolitan region, including COG member jurisdictions. COG will set a subcontracting goal for each contract that has subcontracting possibilities based upon an analysis of the above information.

6. IMPLEMENTATION OF DBE PARTICIPATION GOALS
   
1. Methods For Meeting DBE Participation Goals
   
1. COG will meet the maximum feasible portion of its overall DBE participation goal by using neutral means to facilitate DBE participation. Such neutral means include providing technical assistance and other services to ensure that DBEs have the maximum practicable opportunities to participate in COG procurements. COG will develop its own such neutral means or may employ means developed by COG member jurisdictions.


2. COG will establish DBE participation goals for specific contracts to meet any portion of its overall DBE participation goal that COG determines that it will not be able to meet using neutral means.
   
2. Identification of DBE Participants

COG shall require all bidders or offerors to include a plan for meeting DBE participation goals in procurements that include DBE participation goals. Bidders and offerors must agree to make good faith efforts to meet the DBE goals in their plans. Bidders or offerors should include in their plans the names of any proposed DBE subcontractors who will participate in the contract, a description of the work each is to perform, and the value of each proposed DBE subcontract.

3. Contract Award Criteria
   
1. COG will include the following language in all solicitations for contracts that COG has determined to have subcontracting possibilities: “The award of a contract shall be made only to a bidder/offor who makes good faith efforts to meet COG's DBE participation goals.”


2. COG may include DBE participation as an evaluation criterion in selecting bidders/offerors for award.


3. COG may not deny a contract award on the basis that a bidder/offeror failed to meet the DBE participation goal, provided that the bidder/offeror documents adequate good faith efforts to meet the DBE participation goal.


7. RECORDKEEPING AND REPORTING

COG shall maintain records on its DBE Participation Program and contracting activities. COG will make these records available to authorized officials of Federal funding agencies for review. The records shall relate to:

1. Procedures adopted to comply with Federal DBE regulations.


2. The contracts (including subcontracts) awarded to DBEs, by type of contract, the names and addresses of the participating DBEs, the amount of each contract, and an accounting of the actual amount of expenditures for each contract. COG shall obtain reports from prime contractors and suppliers on their progress in meeting the DBE participation goals in their contracts.


3. COG's efforts to identify and make available contracting opportunities to DBEs and to demonstrate a "good faith effort" to maximize the participation of DBEs in COG procurements.


8. IMPLEMENTATION OF COG's DBE POLICY
   
1. COG Board Resolution

The COG Board shall affirm its commitment to this DBE Policy by resolution, and shall authorize the COG Executive Director to establish COG's annual DBE participation goals and to establish DBE participation goals for individual contracts.

2. Annual Report On The DBE Participation Program

The COG Executive Director annually shall report to the COG Board the efforts COG has made to provide the maximum practicable opportunity for DBEs to participate in COG contracts, and annually shall present to the COG Board summary data on the contracts (including subcontracts) that COG has awarded to DBEs during the preceding year.