48-14

Bill No. 48-14

Concerning: Purchases from Minority Owned Businesses – Procedures – Request for Proposals

Revised: March 19, 2015 Draft No. 5

Introduced: October 21, 2014

Enacted: April 14, 2015

Executive: April 22, 2015

Effective: July 22, 2015

Sunset Date: December 31, 2015

Ch. 20 , Laws of Mont. Co. 2015

County Council

For Montgomery County, Maryland

By: Council President Rice, Council Vice President Leventhal, and Councilmembers Elrich, Branson, Navarro, and Riemer

AN ACT to:

(1) establish an evaluation factor in a request for proposals to increase the participation of minority owned firms in certain procurement contracts;

(2) add additional tools for increasing the participation of minority owned firms in certain procurement contracts; and

(3) generally amend the County’s minority owned business purchasing program.

By amending

Montgomery County Code

Chapter 11B, Contracts and Procurement

Section 11B-60

Boldface                                             Heading or defined term.

Underlining                                          Added to existing law by original bill.

[Single boldface brackets]                  Deleted from existing law by original bill.

Double underlining                              Added by amendment.

[[Double boldface brackets]]              Deleted from existing law or the bill by amendment.

*   *   *                                                  Existing law unaffected by bill.

The County Council for Montgomery County, Maryland approves the following Act:

Sec. 1. Section 11B-60 is amended as follows:

11B-60. Procedures.

(a) By September 30 of each year, the Chief Administrative Officer must set for the following calendar year percentage goals of the dollar value of purchases subject to this Article for each socially or economically disadvantaged group. The goals must correspond to the availability of that group by source selection method and purchasing category in the relevant geographic market area as determined by the most recent report that the County Executive must submit to the County Council under Section 11B-61(b) to perform work under County contracts. The Chief Administrative Officer must set separate goals for each socially or economically disadvantaged group in the County’s purchases of goods, construction, professional services, and other services. The Chief Administrative Officer must not set goals for a socially or economically disadvantaged group unless the Chief Administrative Officer determines that the value of purchases made during the previous fiscal year from that group in each category of purchases under a particular source selection method, compared with the availability of that group to perform work in that category, shows a significant under-utilization of the group.

(b) The Chief Administrative Officer must adopt procedures to certify and decertify minority owned businesses.

(d) For those procurements where a goal has been set under subsection (a), the Office of Procurement must encourage minority owned business participation in procurement. These activities should include:

(1) distribution to potential contractors for whom a goal has not been set of a list of potential minority owned business contractors for whom a goal has been set with a requirement that one or more be contacted if any work subject to a goal is being subcontracted;

(2) a provision in all solicitations for procurements in excess of $50,000 that requires, subject to the waiver provisions of subsection (h), businesses for whom a goal has not been set acting as prime contractors to subcontract to minority owned businesses for whom a goal has been set a percentage of the total dollar value of the contract that is consistent with the numerical goals established under subsection (a);

(3) a requirement that a contractor for whom a goal has not been set:

(A) agree to a plan showing how the contractor proposes to meet its minority owned business procurement subcontracting goal; and

(B) identify, before a notice to proceed is issued or performance of a contract begins, whichever occurs first, each minority owned business that the contractor intends to subcontract with and the projected dollar amount of each subcontract, and promptly notify the using department of any change in either item; [and]

(4) contract requirements that minority owned business participation goals be maintained by prime contractors throughout the life of the contract, including modifications and renewals, subject to the waiver provisions of subsection (h). Contract requirements:

(A) may include obligating contractors subject to the minority owned business procurement goals to provide in each subcontract with a minority owned business a provision requiring the use of binding arbitration to resolve disputes between the contractor and the minority owned business subcontractor; and

(B) must make failure to submit documentation showing compliance with a minority owned business subcontracting plan under paragraph (3) grounds for withholding any remaining payment or imposing liquidated damages unless failure to comply with the plan is the result of an arbitration decision under subparagraph (A) or a waiver granted under subsection (h). Liquidated damages under this provision must equal the difference between all amounts the contractor has agreed under its plan to pay minority owned business subcontractors and all amounts actually paid minority owned business subcontractors under the contract, considering any relevant waiver or arbitrator's decision. Failure to show compliance with a minority owned business subcontracting plan must also result in finding the contractor non-responsible for purposes of future procurements with the County during the next 3 years; and

(5) an evaluation factor with a value of [[at least 10%, but]] no more than [[20%,]] 10% of the total available points in a request for proposals issued under Section 11B-10 awarding additional points for a proposal from:

(A) a contractor for whom a goal has been set under subsection (a); and

(B) a contractor for whom a goal has not been set who proposes to exceed the minority owned business procurement subcontracting goal established for the contract.

* * *

Approved: