TOWN OF BURNSVILLE MINORITY BUSINESS PARTICIPATION AND OUTREACH PLAN
FOR BUILDING CONSTRUCTION OR REPAIR CONTRACTS
Except as provided in NCGS 143-128.2(a) for State funding related projects, in accordance with NCGS 143-128.2, these guidelines establish goals for minority participation in single-prime bidding, separate-prime bidding, construction manager at risk, and alternative contracting methods, on the Town of Burnsville building construction or repair projects in the amount of $300,000 or more.
The Town of Burnsville has a current verifiable goal of ten percent (10%) for minority participation for building construction or repair projects.
I. INTENT
It is the intent of these guidelines that the Town of Burnsville, as awarding authority for building construction or repair projects, and the contractors and subcontractors performing the construction contracts awarded shall cooperate and in good faith do all things legal, proper, and reasonable to achieve the goal of ten percent (10%) for participation by minority businesses in each building construction or repair project as required by NCGS 143-128.2. Nothing in these guidelines shall be construed to require contractors or awarding authorities to award contracts or subcontracts to or to make purchases of materials or equipment from minority-business contractors or minority-business subcontractors who do not submit the lowest responsible, responsive bid or bids.
II. DEFINITIONS
1. Minority: as defined in NCGS 143-128(g)(2) a person who is a citizens or lawful permanent resident of the United States and who is:
a. Black, that is, a person having origins in any of the black racial groups in Africa;
b. Hispanic, that is, a person of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race;
c. Asian American, that is, a person having origins in any of the original peoples of the Far East, Southeast Asia and Asia, the Indian subcontinent, the Pacific Islands;
d. American Indian, that is, a person having origins in any of the original peoples of North America; or
e. Female
2. Minority Business (MBE): as defined by NCGS 143-128(g)(1) a business:
a. In which at least fifty-one percent (51%) is owned by one or more minority persons, or in the case of a corporation, in which at least fifty-one (51%) of the stock is owned by one or more minority persons or socially and economically disadvantaged individuals; and
b. Of which the management and daily business operations are controlled by one or more of the minority persons or socially and economically disadvantaged individuals who own it.
c. The business is certified as a Historically Underutilized Business by the North Carolina Department of Administration Office for Historically Underutilized Business.
3. Socially and Economically Disadvantaged Individual: as defined by 15 U.S.C. 637:
a. Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.
b. Economically disadvantaged individuals are those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged.
4. Public Entity: The State and all public subdivisions and local government units.
5. Owner: The Town of Burnsville.
6. Designer: Any person, firm, partnership, corporation which has contracted with the Town of Burnsville to perform architectural or engineering work.
7. Bidder: Any person, firm, partnership, corporation, association, or joint venture seeking to be awarded a public contract or subcontract.
8. Contract: A mutually binding legal relationship or any modification thereof obligating the seller to furnish equipment, materials, or services, including construction, and obligating the buyer to pay for them.
9. Contractor: Any person, firm, partnership, corporation, association, or joint venture which has contracted with the Town of Burnsville to perform building construction or repair work.
10. Subcontractor: A firm under contract with the prime contractor or construction manager at risk from supplying materials or labor and materials and/or installation. The subcontractor may or may not provide materials in his subcontract.
11. HUB Office: N.C. Department of Administration’s Office for Historically Underutilized Businesses.
MINORITY OUTREACH PLAN AND GUIDELINES
A. OWNER
The Town of Burnsville shall do the following to encourage participation from MBEs:
1. Develop and implement a minority business participation outreach plan to identify minority businesses that can perform public building projects and to implement outreach efforts to encourage minority business participation in these projects to include education, recruitment, and interaction between minority businesses and nonminority businesses.
2. Attend the scheduled pre-bid conference.
3. At least 10 days prior to the scheduled day of bid opening, notify minority businesses that have requested notices from the public entity for public construction or repair work and minority businesses that otherwise indicated to the Office of Historically Underutilized Businesses an interest in the type of work being bid or the potential contracting opportunities listed in the proposal. The notification shall include the following:
a. A description of the work for which the bid is being solicited.
b. The date, time, and location where bids are to be submitted.
c. The name of the individual within the public entity who will be available to answer questions about the project.
d. Where bid documents may be reviewed.
e. Any special requirements that may exist.
The notification shall be submitted through the North Carolina Department of Administration website https://www.doa.nc.gov/divisions/historically-underutilized-businesses-hub/solicitation-opportunities .
4. Utilize other media, as appropriate, likely to inform potential minority businesses of the bid being sought.
5. Place the outreach plan on the Town’s website.
6. After review of prime contractor’s pay applications for compliance with minority business utilization commitments prior to payment, owner will submit the report to HUB Office as required by NCGS 143-128.3(a)
B. DESIGNER
Under the single-prime bidding, separate prime bidding, construction manager at risk, or alternative contracting method, the designer will:
1. Attend the scheduled pre-bid conference to explain minority business requirements to the prospective bidders.
2. Maintain documentation of any contacts, correspondence, or conversation with minority business firms made in an attempt to meet the goals.
3. Review jointly with the owner, all requirements of NCGS 143-128.2(c) and NCGS 143-128.2(f)-(i.e. bidders’ proposals for identification of the minority businesses that will be utilized with corresponding total dollar value of the bid and affidavit listing good faith efforts, or affidavit of self-performance of work, if the contractor will perform work under contract by its own workforce)- prior to recommendation of award.
4. During construction phase of the project, review documentation for contract payment to MBEs (e.g. state form “Appendix E: MBE Documentation for Contract Payment” https://www.doa.nc.gov/document/appendix-e-mbe-documentation-contract-payments for compliance with minority business utilization commitments. Submit this form with pay apps to the Owner.
5. Retain documentation showing evidence of implementation of Designer’s responsibilities and make same available for review by Owner and State officials upon request.
C. PRIME CONTRACTOR(S), CM AT RISK, & FIRST TIER SUBCONTRACTORS
The following requirements apply to all contractors utilizing single-prime bidding, separate-prime bidding, construction manager at risk and alternative contracting methods, as well as to all contractors performing as contractors and first-tier subcontractors under construction manager at risk. For purposes of this subsection, the term “Contractor” shall also include first-tier subcontractors under a construction manager at risk. The Contractors shall:
1. Attend the scheduled pre-bid conference and any pre-bid meetings scheduled by the Owner.
2. Identify or determine those work areas of a subcontract where minority businesses may have an interest in performing subcontract work.
3. At least ten (10) days prior to the scheduled day of bid opening or due date for proposals, notify minority businesses of potential subcontracting opportunities listed in the proposal. The notification must include all of the following:
a. A description of the work for which the sub bid is being solicited.
b. The date, time, and location where sub bids are to be submitted.
c. The name of the individual within the company who will be available to answer questions about the project.
d. Where bid documents may be reviewed.
e. Any special requirements that may exist such as insurance, licenses, bonds and financial arrangements. Identify on the bid the minority businesses that will be utilized on the project with corresponding total dollar value of the bid and affidavit listing good faith efforts as required by NCGS 143-128.2(c) and NCGS 143-128.2(f).
4. Make documentation showing evidence of implementation of compliance with this plan’s responsibilities for Contractors, CMAR and First Tier Subcontractors available for review by Town of Burnsville upon request.
5. During the bidding process, comply with the contractor requirements listed in these Guidelines and any contactor requirements listed in the Town of Burnsville Minority Business Participation Outreach Plan.
6. Identify on the bid the minority businesses that will be utilized on the project with corresponding total dollar value of the bid and submit affidavit listing Good Faith Efforts (Affidavit A) as required by NCGS 143-128.2(c) and NCGS 143-128.2(f). If the contractor will be performing all of the work with its own workforce, the contractor may submit Affidavit B, Intent to Perform Contract with Own Workforce, in lieu of Affidavit A. Failure to comply with these requirements is grounds from rejection of the bid and award to the next lowest responsible and responsive bidder.
7. Provide one of the following to Owner upon being named the apparent low bidder:
a. Affidavit C that includes a description of the portion of the work to be executed by minority businesses, expressed as a percentage of the total contract price, which is equal to the applicable goal; or
b. If the percentage is not equal to the applicable goal, then provide an Affidavit D and documentation of all Good Faith Efforts take to meet the goal. The documentation must include evidence of all good faith efforts implemented, including any advertisements, solicitation, and evidence of other specific actions demonstrating recruitment and selection of minority businesses for participation in the contract. Failure to comply with these requirements is grounds for rejection of the bid and award to the next lowest responsible and responsive bidder.
8. Within thirty (30) days after award of the contract, the apparent lowest responsible, responsive bidder shall file with Owner a list of all identified subcontractors that the contractor will use on the project.
9. Identify the names of minority business subcontractors and corresponding amount of work on the schedule of values.
10. Submit documentation from contract payment with each monthly pay request and final payment request the “MBE Documentation for Contract Payment” for Appendix E for Contract Payment to Designer for their review.
11. If at any time during the construction of a project, it becomes necessary to replace a minority business subcontractor, immediately advise Owner in writing of the circumstances involved. The prime contractor shall make a good faith effort to replace a minority business subcontractor with another minority business subcontractor.
12. Make a good faith effort to solicit sub-bids from minority businesses during the construction of a project if additional subcontracting opportunities become available.
13. If applicable the CMAR shall submit its plan for compliance with NCGS 143-128.2 for approval by the Town prior to soliciting bids for the project’s first tier subcontractors.
D. MINORITY BUSINESS RESPONSIBILITES-CERTIFICATION
The Town of Burnsville does not certify minority businesses. Any business which desires to participate as a minority business under these Guidelines will be required to register and become certified as a historically underutilized business (“HUB”) by the North Carolina Department of Administration Office for Historically Underutilized Businesses (“HUB OFFICE”).
Businesses seeking HUB certification are directed to: https://www.doa.nc.gov/divisions/historically-underutilized-businesses-hub/certifications
Minority HUB contractors shall make good faith efforts to participate in construction projects as demonstrated by:
1. Attending the scheduled pre-bid conference.
2. Responding promptly whether or not they wish to submit a bid when contacted by the Owner or bidders.
E. MINIMUM COMPLIANCE REQUIREMENTS
All written statements or affidavits made by the bidder shall become a part of the agreement between the contractor and the Town of Burnsville for performance of the contract. Failure to comply with any of these statements, affidavits, or with the minority business guidelines shall constitute a breach of the contract. A finding by the Burnsville Town Council that any information submitted either prior to award of the contract or during the performance of the contract is inaccurate, false, or incomplete shall also constitute a breach of the contract. Any such breach may result in termination of the contract in accordance with the termination provisions contained in the contract. It shall be solely at the option of the Burnsville Town Council whether to terminate the contract for breach.
In determining whether a contractor has made good faith efforts, the Burnsville Town Council will evaluate all efforts made by the Contractor and will determine compliance in regard to quantity, diligence, and results of these efforts.
Contractors are required to earn at least 50 points for good faith efforts. Failure to file a required affidavit or documentation demonstrating that the contractor made the required good faith effort, is grounds for rejection of the bid. Good faith efforts include:
1. Contacting minority businesses that reasonably could have been expected to submit a quote and that were known to the contractor or available on State or local government maintained lists at least ten (10) days before the bid or proposal date and notifying them of the nature and scope of the work to be performed. (10 points)
2. Making the construction plans, specifications, and requirements available for review by prospective minority businesses, or providing these documents to them at least ten (10) days before the bid or proposals are due. (10 points)
3. Breaking down or combining elements of work into economically feasible units to facilitate minority participation. (15 points)
4. Working with minority trade, community, or contractor organizations identified by the Office for Historically Underutilized Businesses and included in the bid documents that provide assistance in recruitment of minority businesses. (10 points)
5. Attending any pre-bid meetings scheduled by the public owner. (10 points)
6. Providing assistance in getting required bonding or insurance or providing alternatives to bonding or insurance for subcontractors. (20 points)
7. Negotiating in good faith with interested minority businesses and not rejecting them as unqualified without sound reasons based on their capabilities. Reasons for rejection of a minority business based on lack of qualification should be documented in writing. (15 points)
8. Providing assistance to an otherwise qualified minority business in need of equipment, loan capital, lines of credit, or joint pay agreements to secure loans, supplies, or letters of credit, including waiving credit that is ordinarily required. Assisting minority businesses in obtaining the same unit pricing with the bidder’s suppliers in order to help minority businesses in establishing credit. (25 points)
9. Negotiating joint venture and partnership arrangements with minority businesses in order to increase opportunities for minority business participation on a public construction or repair project when possible. (20 points)
10. Providing quick pay agreements and policies to enable minority contractors and suppliers to meet cash flow demands. (20 points)
F. DISPUTE RESOLUTION PROCEDURES
Pursuant to N.C.G.S. § 143-128(f1), all disputes involving contractors on a building construction or repair project with the Town of Burnsville shall be resolved pursuant to State of North Carolina Policy, specifically that which is located at N.C.G.S. § 143-135.26(11).
G. BID PACKAGE PROVISIONS In addition to these guidelines, there will be issued with each construction bid package provisions for providing minority business participation in Town of Burnsville projects.