DBE Program

CITY OF SALEM
AIRPORT DIVISION

DEFINITION OF TERMS

The terms used in this program have the meanings defined in 49 CFR 26.5.

DBE POLICY STATEMENT (CFR Part 26.23)

The City of Salem, a municipal corporation of the State of Oregon (herinafter “ The City”) has established a Disadvantaged Business Enterprise (DBE) program for the Salem Municipal Airport in accordance with regulations of the U. S. Department of Transportation (DOT), 49 CFR Part 26. The City has received Federal financial assistance from the DOT, and as a condition of receiving this assistance, the City has signed assurances that it will comply with 49 CFR Part 26. This DBE program applies only to the City’s Municipal Airport and FAA - DOT funded projects for the Airport.

It is the policy of the City to ensure that DBE’s, as defined in Part 26, have an
equal opportunity to receive and participate in FAA - DOT assisted contracts. It is also our policy:

1. To ensure nondiscrimination in the award and administration of FAA - DOT assisted contracts;
2. To create a level playing field on which DBE’s can compete fairly for FAA - DOT assisted contracts;
3. To ensure that the DBE Program is narrowly tailored in accordance with applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBE’s;
5. To help remove barriers to the participation of DBE’s in FAA - DOT assisted contracts; and
6. To assist the development of firms that can compete successfully in the market place outside the DBE program.

The City Manager of the City of Salem has designated the Airport Superintendent as the DBE Liaison Officer. In that capacity, the Superintendent is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the City in its financial assistance agreements with the FAA - DOT.

The City has disseminated this policy statement to the governing body of the City, the City Council, and all the Divisions within the City’s administrative organization. The City has distributed this statement to disadvantaged businesses and non-minority business and community organizations that currently perform, or have performed, work for us on FAA - DOT assisted Airport contracts and in the local newspaper. The distribution was accomplished by mailing a copy of this program to each business the airport has now or previously had a FAA - DOT assisted contract. A copy will also be sent to each business that answers a request for proposal on a FAA - DOT assisted project.

In accordance with “Overall Goals; Process” on page 6 of this document, this plan was published in the local press, posted at the City Clerk’s office and at the Airport Management Office, and a public meeting was held for comment. No public comments were received.



__________________________ _________________
Robert D. DeLong Date:
City Manager
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NONDISCRIMINATION (CFR Part 26.7)

The City will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or national origin.

In administering its DBE program, the City will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin.

DBE PROGRAM UPDATES (CFR Part 26.21)

The City will continue to carry out this program until all funds from Federal Aviation Administration (FAA) - DOT financial assistance have been expended. The City will provide to FAA updates representing significant changes in the program.


QUOTAS (CFR Part 26.43)

The City does not use quotas in any way in the administration of this DBE program.


DBE LIAISON OFFICER (DBELO) (CFR Part 26.25)

The City has designated the following individual as the Airport Division, DBE Liaison Officer (DBELO): Tom Long, Salem, 2990 25th Street SE, Salem, Oregon. In that capacity, Tom Long is responsible for implementing all aspects of the DBE program and ensuring that the Airport Division complies with all provisions of 49 CFR Part 26 in connection with the award and performance of contracts covered by 49 CFR 26. An organizational chart displaying the DBE Liaison’s position in the organization is found in Attachment 1 to this program.

The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination with other appropriate officials. Duties and responsibilities include the following:

1. Gathers and reports statistical data and other information as required by DOT.
2. Disseminating information on available business opportunities so that DBE’s are provided an equitable opportunity to compete for FAA-assisted contracts awarded by the City.
3. Coordinating the DBE Program with FAA.
4. Ensuring that solicitations contain the clauses and goals required by this program.
Other personnel who have been assigned DBE Program responsibilities include:

1. Contract Engineer provides information to the DBE Liaison Officer on contracting and leasing opportunities, together with a breakdown of subcontracting possibilities.

2. City buyer, who is responsible for consulting with the DBE Liaison Officer on procurement policies, including bonding, licenses, and other requirements.

3. The Salem City Attorney, who reviews contract clauses for legal sufficiency.

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FEDERAL FINANCIAL ASSISTANCE AGREEMENT ASSURANCE (CFR Part 26.13a)

The City has signed the following assurance, applicable to all FAA-DOT assisted contracts and their administration:

The City shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any FAA - DOT assisted contract or in the administration of its DBE Program or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of FAA - DOT assisted contracts. The recipient’s DBE Program, as required by 49 CFR Part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the City of its failure to carry out its approved program, the Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).

DBE FINANCIAL INSTITUTIONS (CFR Part 26.27)

There are a limited number of financial institutions in the City, none of which are owned and controlled by socially and economically disadvantaged individuals in the community. If this situation changes in the future, the City will make reasonable efforts to use these institutions, and to encourage prime contractors on FAA - DOT assisted contracts to make use of these institutions. Salem researched the State OMWESB (http://www.cbs.state.or.us/omwesb) and found no such institutions in our areas.

DIRECTORY (CFR Part 26.31)

The State of Oregon maintains a directory, compiled by the Department of Consumer & Business Services, identifying all firms eligible to participate as DBE’s. The directory lists the firm’s name, address, phone number, type of work the firm has been certified to perform as a DBE, and their DBE designation. Access of this directory is located in the DBE Liaison Office in the Administration Office Building. The directory is updated daily, including any additional DBE’s certified during that period. The State of Oregon does not publish the DBE directory in a paper document. Interested parties can access the directory at 350 Winter St NE Salem Or 97301-3878 or on the internet at http://www.cbs.state.or.us/omwesb . Listing shows contact names, phone numbers and addresses.

The Directory is made available on request to interested bidders and proposers in their efforts to meet the DBE goals established by the City and made a part of bid specifications. The Directory is a primary source for locating potential DBE contractors. Attachment 2 is a sample of pages from the directory.

OVER CONCENTRATION (CFR Part 26.33)

The City has not identified a problem with over concentration of DBE firms in any specific area which would result in the loss of bidding opportunities for non-DBE firms.
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REQUIRED CONTRACT CLAUSES (CFR Part 26.13(b))

Contract Assurance

The City will require that the following clause is placed in every FAA - DOT assisted contract and subcontract:

The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of FAA - DOT assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate.

Prompt Payment (CFR Part 26.29)

The City will include the following clause in each FAA- DOT assisted prime contract:

“The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than thirty (30) days from the receipt of each payment the prime contractor receives from the City . The prime contractor agrees further to return retainage payments to each subcontractor within thirty (30) days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City . This clause applies to both DBE and non-DBE subcontractors.

If the prime contractor fails to make timely payments to the subcontractor as outlined above, the prime contractor shall pay the subcontractor an interest penalty in the amount of one-and-one-half percent per month beginning on the day after the required payment date and ending on the date on which the prime contractor makes the payment due to the subcontractor.

The subcontractor must provide in all contracts with lower tier subcontractors or suppliers clauses requiring that the subcontractor shall pay the lower tier subcontractors and suppliers in accordance with the provisions above.”
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MONITORING AND ENFORCEMENT MECHANISMS (CFR Part 26.37)
The City will monitor DBE contracts, DBE scheduled work and payments to DBE contractors as part of all federally assisted projects to ensure compliance with this policy. Non-compliance could be considered as a breach of contract and may result in the suspension or termination of the contract or such other remedy as deemed appropriate by the City and the FAA.

The City will bring to the attention of the Department of Transportation any false, fraudulent, or dishonest conduct in connection with the program as provided in 26.107.

The City also will consider similar action under their own legal authorities granted through the contract documents, including responsibility determinations in future contracts. Attachment 3 is a listing of standard contract provisions for the City.

OVERALL GOALS (CFR Part 26.45)
The City of Salem Airport Division’s overall goal for FY2002 is the following: 4 % of the Federal financial assistance the City will expend in FAA - DOT assisted contracts.

During FY2002, the City expects to let $1,776,999 in FAA - DOT assisted contracts. This means that the City has set a goal of expending $ 71,079.96 with DBE’s during this fiscal year/project.
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Method
In arriving at this goal, the City of Salem Airport Division performed several tasks. We contacted the State of Oregon Corporate Business Division to obtain the total number of businesses in ODOT Code 10399 (Heavy Construction), through six counties surrounding the airport (Benton, Clackamus, Linn, Marion, Polk and Yamhill counties). Six counties were designated in our market area due to the location to Marion County and from previous bids from companies in these areas. The City then consulted the Disadvantaged Business Enterprise and Minority/Women Business Enterprise Certified Directory maintained by the State of Oregon to find the number of certified businesses in the job classifications available on the projects for the fiscal year and arrived at the percentage of companies available to complete the work.

100% 3 DBE’s in Code 10399 = 4 %
77 CBP’s

Our past DBE goal in 1996 was 10% with an actual accomplishment of 8.3 %. Our goal for the 2001 project is 8.9 %. This project is still underway and not projected to be completed until after September 2002. This 2002 project is expected to start in July 2002.

Approximately 86 % of the total dollars in FY2002's projects will fall in the category of road construction. This equates to approximately $1,532,748. Of those funds, $ 245,000 is estimated for electrical work, and the remaining $1,287,748 of the subcontracting opportunities in the areas of trucking and construction materials, including asphalt and culvert pipe. There are only 3 DBE’s in the ODOT Code for Heavy Construction within the six counties while there are 77 businesses in this code listed with the State of Oregon Business Division. We calculate that 4 % of the businesses listed in these specific ODOT codes are registered with the State as DBE's.

In calculating our 4% goal, we considered past and present goals. Our 1996 goal of 10% was under the old DBE program and we fell short of reaching that goal. Our present goal of 8.9% is still underway and therefore, we do not have participation data to apply to this goal-setting period. For these reasons, we have decided not to adjust our 4% goal calculated on page 6 of this plan.

A disparity study was conducted in 1996 for the Portland Region. The study did find evidence of discrimination in contracting with minority and women-owned businesses. It also indicated that when including minority and women owned businesses in contracting opportunities, the same businesses were included repeatedly for opportunities. We did not adjust our DBE participation goal based on this information. The City’s area of concentration is outside that of the Portland region.
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Process
The City advertised its 2002 goal in a minority paper (El Latina de Hoy) on May 22, 2002. We will review the comments received to determine any necessary adjustments to the goal and will provide the FAA with a summary of the information and comments received during the 45 day comment period. The City consulted with the State of Oregon to obtain information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBE’s, and the City ’s efforts to establish a level playing field for the participation of DBE’s.

The City of Salem’s overall goal submission to FAA - DOT will include a summary of information and comments received during this public participation process and our responses.

The City of Salem Airport Division will begin using our overall goal on October 1 of each year, unless the City has received other instructions from FAA - DOT.

Breakout of Estimated Race-Neutral and Race-Conscious Participation (CFR Part 26.51 (a-c))
The City will meet the maximum feasible portion of its overall goal by using race-neutral means of facilitating DBE participation. The City projects will achieve increased DBE participation through race-neutral means by encouraging prime contractors to subcontract portions of work that they might otherwise perform with their own forces; ensuring the inclusion of DBE’s and other small businesses on recipient mailing lists for bidders; and advising prime contractors of the State of Oregon DBE website (www.cbs.state.or.us).
During our 1996 grant project, the City fell short of reaching its 10% goal by 1.7%. A present goal of 1.7% race conscious was selected to meet the current grant project. Although this project is not expected to close out until after the FY 2003 project starts, our DBE race conscious goal of 2% was established by dividing the 4% overall goal by two, half to race conscious and half to race neutral.

The City will adjust the estimated breakout of race-neutral and race-conscious participation as needed to reflect actual DBE participation and will track and report race-neutral and race-conscious participation separately. For reporting purposes, race neutral DBE participation includes, but is not necessarily limited to, the following: DBE participation through a prime contract a DBE obtains through customary competitive procurement procedures; DBE participation through a subcontract on a prime contract that does not carry a DBE goal; DBE participation on a prime contract exceeding a contract goal; and DBE participation through a subcontract from a prime contract that did not consider a firm’s DBE status in making the award.
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CONTRACT GOALS (CFR Part 26.51 (d-g))
The City will use contract goals to meet any portion of the overall goal the City does not project being able to meet using race-neutral means. Contract goals are established so that, over the period to which the overall goal applies, they will cumulatively result in meeting any portion of our overall goal that is not projected to be met through the use of race-neutral means.

The City will establish contract goals only on those FAA - DOT-assisted contracts that have subcontracting possibilities. The City needs not establish a contract goal on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e.g., type and location of work, availability of DBEs to perform the particular type of work).

The City will express our contract goals as a percentage of the Federal Share of a FAA - DOT assisted contract.

GOOD FAITH EFFORTS (CFR Part 26.53)
When the City has established a DBE contract goal, the Airport Division treats bidder/offerors’ compliance with good faith efforts requirements as a matter of responsiveness. Each solicitation for which a contract goal has been established will require the bidders/offeror to submit the following information within 30 days prior to the award of the contract:


1. The names and addresses of DBE firms that will participate in the contract;

2. A description of the work that each DBE firm will perform;

3. The dollar amount of the participation of each DBE firm participating;

4. Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal;
5. Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor’s commitment; and

6. If the contract goal is not met, evidence of good faith efforts.

Demonstration of good faith efforts

The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. Examples of good faith efforts are found in Appendix A to part 26.

The Airport Superintendent is responsible for determining whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive.

The City will ensure that all information is complete and accurate and adequately documents the bidder/offeror’s good faith efforts before we commit to the performance of the contract by the bidder/offeror.
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ADMINISTRATIVE RECONSIDERATION (CFR Part 26.53 (d))

Within 10 days of being informed by the City that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administration reconsideration. Bidder/offerors should make this request in writing to the following reconsideration official: Salem Municipal Airport, Attn: Thomas Long, 2990 25th Street SE, Salem, Oregon, 97302. The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make sufficient good faith efforts.

As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. The bidder/offeror will have the opportunity to meet in person with our reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. The City will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to the Department of Transportation.

Good Faith Efforts when a DBE is replaced on a contract (CFR Part 26.53(f))

Where there are contract goals, the City will require a contractor to make good faith efforts to replace a DBE subcontractor that is terminated or has otherwise failed to complete its work on a contract with another certified DBE subcontractor, to the extent needed to meet the contract goal. The City will require the prime contractor to notify the DBE Liaison Officer immediately of the DBE’s subcontractor’s inability or unwillingness to perform and provide reasonable documentation.

In this situation, the City will require the prime contractor to obtain our prior approval of the substitute DBE and to provide copies of new or amended subcontracts, or documentation of good faith efforts. The City will use administrative remedies to enforce DBE requirements.

COUNTING DBE PARTICIPATION (CFR Part 26.55)

The City will count DBE participation toward overall and contract goals as provided in 49 CFR 26.55.

CERTIFICATION (26.56 - 89)

The certification agency for the State of Oregon is the Office of Minority, Women and Emerging Businesses (OMWESB). OMWESB provides staff to conduct DBE certification, recertification, de-certification, appeals, challenges, investigations of third party allegations, and public awareness activities pertaining to certification programs and maintains the DBE directory which identifies all firms eligible state-wide to participate as DBE’s. City of Salem uses the State Unified Certification Process (see attachment 6).

Information Collection and Reporting

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Bidders List (CFR Part 26.11)

The City of Salem Airport Division will create a bidders list, consisting of information about all DBE and non-DBE firms that bid or quote on FAA - DOT-assisted contracts. The purpose of this requirement is to allow use of the bidders list approach to calculating overall goals. The bidders list will include the name, addresses, phone numbers, DBE/non-DBE status, age of firm, and annual gross receipts of firms. This bidders list is a required document on every bid package (Attachment 7)

The City of Salem will collect this information through contract language requiring prime bidders to report the names, addresses, phone numbers of all firms who quote to them on subcontracts, as well as a description of the work to be performed and the contract amount.

Monitoring Payments to DBE’s

The City will require prime contractors to maintain records and documents of payments to DBE’s for three years following the performance of the contract. These records will be made available for inspection upon request by any authorized representative of the City or FAA - DOT. This reporting requirement also extends to any certified DBE subcontractor. The City will keep a running tally of actual payments to DBE firms for work committed to them at the time of contract award. The City will perform interim audits of contract payments to DBE’s. The audit will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation.

Reporting to FAA - DOT

The City will report DBE participation to FAA - DOT by annually submitting FAA - DOT Form 4630, as modified for use by the FAA recipients.

Confidentiality

The City will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local law. Notwithstanding any contrary provisions of state or local law, we will not release personal financial information submitted in response to the personal net worth requirement to a third party (other than FAA - DOT) without the written consent of the submitter.

Attachments Are listed in the Airport Superintendents office out at the airport.

Attachment 1 - Salem Organizational Chart

Attachment 2 - Sample Pages - State of Oregon DBE Directory

Attachment 3 - City Standard Contract Provisions

Attachment 4 - Copy of 49 CFR Part 26

Attachment 5 - 1997 Oregon Revised Statutes & State of Oregon OAR Chapter 445,
Division 050

Attachment 6 - State of Oregon Certification Requirements and Application for Certification, including Statement of Personal Net Worth

Attachment 7 - Bidders List
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