Agenda Item 6
December
2, 2014
Public Hearing
MEMORANDUM
November
26,2014
TO:
FROM:
County Council
Robert H. Drwnmer, Senior Legislative Attorney
4J
'\
SUBJECT:
Public Hearing:
Bill
48-14,
Purchases from Minority Owned Businesses
Procedures - Request for Proposals
Bill
48-14,
Purchases from Minority Owned Businesses - Procedures - Request for
Proposals, sponsored by Council President Rice, Council Vice President Leventhal, and
Councilmembers EIrich and Branson, was introduced on October
21, 2014.
A Government
Operations and Fiscal Policy Committee worksession
will
be scheduled at a later date.
The
2014
Disparity Study found a statistically significant unrlerutilization of some
Minority, Female, and Disabled (MFD) groups in each procurement category that can be
attributed to discrimination in the marketplace. Although the County's current MFD
subcontracting requirement has increased the utilization of MFD firms, new ideas and remedies
are
necessary. The goal of this Bill is to authorize an additional tool to remedy the significant
underutilization of some MFD groups in County procurement.
Bill 48-14
would permit an evaluation factor in a request for proposals to increase the
participation of minority owned firms in certain procurement contracts. The Department of
General Services Director would be authorized to establish an evaluation factor in a request for
proposals that would award additional points for a proposal from:
( 1)
a contractor for whom a goal has been set under the MFD program; and
(2)
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.
Circle
#
1
6
This packet contains:
Bill
48-14
Legislative Request Report
F:\LAWlBILLS\l448 Purchases From Minority
Owned
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Bill No.
48-14
Conceming: Purchases from Minority
Owned Businesses - Procedures ­
Request for Proposals
Revised: October 10,2014 Draft No.
~
Introduced:
October 21, 2014
Expires:
April 21 , 2016
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: _ _ _ _ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President Rice, Council Vice President Leventhal, and Councilmembers EIrich and
Branson
AN
ACT
to:
(1)
(2)
(3)
establish an evaluation factor in a request for proposals to increase the participation
of minority owned fInns in certain procurement contracts;
add additional tools for increasing the participation of minority owned fInns in
certain procurement contracts; and
generally amend the County's minority owned business purchasing program.
By amending
Montgomery County Code
Chapter 11 B, Contracts and Procurement
Section IIB-60
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
'
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No. 48-14
1
2
Sec. 1.
Section IIB-60 is amended as follows:
IIB-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 IlB-61(b) to perfonn 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
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Administrative Officer must not set goals for a socially or economically
disadvantaged group unless the Chief Administrative Officer detennines
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
perfonn 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.
(c)
The Office of Procurement must publicly notifY businesses of
prospective procurement opportunities.
(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:
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o~businesses
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BILL
No. 48-14
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(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;
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(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);
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(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
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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
~businesses
• request for proposals\biIl4.doc
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BILL
No. 48-14
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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
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ill
an evaluation factor with !! value of at least 10%, but no more
than 20%, of the total available points in !! request for proposals
issued under Section 11 B-1 0 awarding additional points for !!
proposal from:
(A)
!! contractor for whom!! goal has been set under subsection
l!!t
and
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ow~usinesses.
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SILL
No. 48-14
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Approved:
an
~
contractor for whom
~
goal has not been set who
nronoses to exceed the minori!y owned business
nrocurement subcontracting goal established for the
contract.
*
*
*
Craig
L.
Rice, President, County Council
Date
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90
Approved:
Isiah Leggett, County Executive
Date
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92
This is a correct copy ofCouncil action.
Linda M. Lauer, Clerk ofthe Council
Date
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owned
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for
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(j)
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LEGISLATIVE REQUEST REPORT
Bill 48-14
Purchases from Minority Owned Businesses-Procedures-Request for Proposals
DESCRIPTION:
Bill 48-14 would establish an evaluation factor in a request for
proposals to increase the participation of minority owned firms
in
certain procurement contracts. The Department of General Services
Director would be authorized to establish an evaluation factor in a
request for proposals that would award additional points for a
proposal from:
(1)
a contractor for whom a goal has been set under the
MFD program; and
(2)
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.
The 2014 Disparity Study found a statistically significant
underutilization of some MFD groups in each procurement category
that can be attributed to discrimination in the marketplace. Although
the County's current MFD subcontracting requirement has increased
the utilization ofMFD firms, new ideas and remedies are necessary.
The goal is to authorize an additional tool to remedy the significant
underutilization of some MFD groups in County procurement.
County Attorney, Department of General Services
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, Senior Legislative Attorney
Not applicable.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None
f:\law\bills\1448 purchases from minority owned businesses - request for pr