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CM-2020-130 - 5/8/2020City of Round Rock f ROUND ROCK TEXAS Agenda Item Summary Agenda Number: Title: Consider executing updates to the Disadvantaged Business Enterprise Program. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 5/8/2020 Dept Director: Gary Hudder, Transportation Director Cost: $0.00 Indexes: Attachments: DBE Program Revised April 2020.pdf Department: Transportation Department Text of Legislative File CM-2020-130 Updates to the Disadvantaged Enterprise Program (DBE) to include the following language in order to meet the requirements of the Federal Transit Administration (FTA) for federally funded projects under 49 CFR Part 26. The following are the sections of the current program that been updated along with updating the address and DBE Liaison Officer from Caren Lee to Edna Johnson. Section 21 - Shortfall Analysis (Part 26.47) - page 16 At the end of any DBE year in which the City does not achieve its DBE goal as reflected for that year in the City's Triennial DBE Goal, the City will perform a Shortfall Analysis. The DBELO will conduct this Shortfall Analysis within two (2) months of the close of the DBE year. The Shortfall Analysis will analyze, in detail, the reasons for the difference between the DBE goal for that year and the actual DBE participation for that year. The Shortfall Analysis will take into account any efforts previously undertaken by the agency to achieve the DBE Goal. To increase the likelihood that the City will achieve its DBE Goal in future years, the DBELO will develop an action plan which will include: Outreach to vendors who were invited to participate in the City's contracting opportunities to identify the reasons for their non -participation, and Investigate and utilize other available resources and methods to encourage DBE participation in future contracting opportunities. City of Round Rock Page 1 Printed on 51712020 Agenda Item Summary Continued (CM-2020-130) Section 13. Overall Goals, Breakout of Estimated Race -Neutral and Race -Conscious Participation and Contract Goals (Parts 25.45 and 26.51) - page 10 The City will calculate its triennial overall DBE goal and publish it to show what percentage of the Federal financial assistance in DOT -assisted contracts the City will expend, exclusive of FTA funds to be used for the purchase of the transit vehicles. The City will submit its overall goal to the Federal Transit Administration (FTA) on August 1 st for each of the three- year triennial period. The City will meet the maximum feasible portion of its overall goal by using race -neutral means. Methodology The following is a summary of the method to be used to calculate this goal: 1. Total dollars per major NAICS Code area budgeted will be identified for future three years; 2. Base Figures for each major NAICS Code area will be identified by dividing the number of DBEs by the total number of firms in order to obtain the relative availability of DBEs per NAICS Code area; 3. By multiplying the relative availability of DBEs by the total dollars budgeted for each corresponding NAICS Code area, an estimated dollar amount for DBE participation in each area will be obtained. 4. The sum of the estimated dollar amount will be calculated, and it will be divided by the total dollars budgeted for award in three future years to derive an estimated overall goal. 5. This overall goal will then be adjusted considering the median of the previous five-year DBE participation and the base figure. Then, this goal will be adjusted considering the past Race Neutral participation and changes regarding what work can be counted towards a DBE goal, the nature of the projects the City expects to award, and the relative availability of firms in those NAICS code areas. Public Participation Once the City has established a proposed goal, we will publish a notice informing the public the proposed goal is available for inspection at the Transit Center for 30 days and comments will be accepted for 45 days. The notice will include information on how to submit comments and will be published in the local newspaper, minority focused papers and on the city's website. City of Round Rock Page 2 Printed on 51712020 X TEXAS City of Round Rock DisadvantagedBusiness Bnterprise Program ov, 020--1 Updated April 2020 Grantee ID: 6631 City of Round Rock Table of Contents Section # Section Title Page # 1 General Information/Applicability/Definitions of Terms 3 2 Objectives and Policy Statement 4 3 DBE Program Updates 4 Non -Discrimination Requirements 5 5 Federal Financial Assistance Agreement 6 DBE Liaison Officer 6 7 Directory 8 DBE Financial Institutions 7 9 Unified Certification Program 10 Overconcentration 11 Business Development Program 9 12 Required Contract Clauses 13 Overall Goals, Breakout of Estimated Race -Neutral and Race -Conscious Participation and Contract Goals 10 14 Transit Vehicle Manufacturers Goals 15 Good Faith Efforts 11 16 Counting DBE Participation 17 Quotas 13 18 Monitoring and Enforcement 19 Reporting, Bidders List and Confidentiality 20 Small Business Participation 15 21 Shortfall Analysis 16 Attachments 1 Forms 17 1. General Information Applicability: The City of Round Rock is a recipient of U.S. Department of Transportation (DOT) funds and has a Disadvantaged Business Enterprise (DBE) Program that meets the requirements of the Federal Transit Administration (FTA) for federally funded projects under 49 CFR Part 26. Definitions of Terms The terms used in this program have the meanings defined in 49 CFR 26.5. Page 13 2. Objectives and Policy Statement (Parts 26.1 and 26.23) The City of Round Rock has established a Disadvantaged Business Enterprise (DBE) Program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 C.F.R. Part 26. The City of Round Rock has received Federal financial assistance from DOT and as a condition of receiving this assistance the City of Round Rock has signed an assurance that it will comply with 49 C.F.R. Part 26. It is the policy of the City to ensure that DBEs, as defined in 49 C.F.R. Part 26, have an equal opportunity to receive and participate in DOT assisted contracts. It is also our policy: • To ensure non-discrimination in the award and administration of DOT assisted contracts; • To create a level playing field on which DBEs can compete fairly for DOT assisted contracts; • To ensure the DBE Program in narrowly tailored in accordance with applicable law; • To ensure only firms that fully meet 49 C.F.R. Part 26 eligibility standards are permitted to participate as DBEs; • To help remove barriers to the participation of DBEs in DOT assisted contracts, as allowed by federal, state and local regulations; and • To assist the development of firms that can compete successfully in the marketplace outside the DBE Program. • To have a Small Business provision for DOT assisted contracts without regard to DBE certification. The Transit Coordinator has been designated as the DBE Liaison Officer. In that capacity, the Transit Coordinator 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 of Round Rock in its financial assistance agreements with DOT. �At�W(Ll l ` aurae Hadley, 'Cityanager Date - Page 14 3. DBE Program Updates (Part 26.21) The City will continue to carry out this Program until all funds from DOT financial assistance have been expended. We will provide DOT updates representing significant changes in the Program. 4. Non -Discrimination Requirements (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 C.F.R. 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 which 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. 5. Federal Financial Assistance Agreement (Part 26.13) The City has signed the following assurances applicable to all DOT assisted contracts and their administration: The City shall not discriminate on the basis of race, color, sex or national origin in the award and performance of any DOT assisted contract or in the administration of its DBE Program or the requirements of 49 C.F.R. Part 26. The recipient shall take all necessary and reasonable steps under 49 C.F.R. Part 26 to ensure non-discrimination in the award and administration of DOT assisted contracts. The recipient's DBE Program, as required by 49 C.F.R. 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 sanction as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S. 1001 and/or the Program Fraud Civil remedies Act of 1986 (31 U.S.C. 3801 et seq.). Additionally, the City of Round Rock will ensure that the following language is included in financial assistance agreements with sub recipients and require the prime contractor to impose the same requirement on each subcontract the prime contractor signs with a subcontractor. "The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of the contract. The contractor shall carry out the applicable requirements of 49 CFR part 26 in the award and administration of DOT -assisted contracts. Failure to carry out these requirements is a material breach of this contract, which may result in the termination of the contract or such other remedy as recipient deems appropriate, which may include, but is not limited to: (1) withholding monthly (or periodic) payments; (2) assessing sanctions; (3) liquidated damages; and/or (4) disqualifying the contractor from future bidding as non -responsible." Page 15 6. DBE Liaison Officer (Part 26.25) The City has designated the following individual as the DBE Liaison Officer (DBELO) Edna Johnson 3400 Sunrise Road Round Rock, Texas 78665 (512) 671-2869, ejohnson@roundrocktexas.gov In that capacity, the DBELO is responsible for implementing all aspects of the DBE Program and ensuring the City complies with all provisions of 49 C.F.R. Part 26. The DBELO has direct, independent access to the City Manager concerning DBE Program matters. An organization chart displaying the DBELO's position is shown below. The DBELO is responsible for developing, implementing and monitoring the DBE Program, in coordination with other appropriate officials. The DBELO has no staff to assist in the administration of the Program. The duties and responsibilities of the DBELO include the following: • Gathers and reports statistical data and other information as required by DOT, FTA & TxDOT; • Reviews third party contracts and purchase requisitions for compliance with this Program; • Works with all departments to set overall annual goals; • Ensure bid notices and requests for proposals are available to DBEs in a timely manner; • Identifies contracts and procurements so DBE goals are included in solicitations (both race - neutral methods and contract specific goals attainment) and identifies ways to improve progress; • Conduct an annual short fall analysis to identify through a shortfall narrative the reason the City failed to meet their DBE goal, identify a corrective action plan and set milestones to meet the DBE goals. The City will ensure contractor compliance with DBE goals and identify ways to improve DBE participation; • Participates in pre -bid and pre -construction meetings; • Advises the City Manager/City Council on DBE matters and achievement; • Responsible for determining whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts; • Participates in DBE training seminars; • Provides outreach to DBEs and community organizations to advise them of opportunities; and • Maintains the bidders list of all DBE and non -DBE firms who bid or quote on DOT assisted contracts and matching fund contracts. Page 16 r_ City Manager D i re cto r Transportation DBE Liaison Officer 7. Directory (Part 26.31) The City identifies all firms eligible to participate as DBEs from the Texas Unified Certification Program website directory. The directory lists the firm's name, address, phone number, date of most recent certification and the type of work the firm has been certified to perform as a DBE. The directory is available from the Texas Department of Transportation at https://www.txdot.gov/business/partnerships/dbe.html. A hard copy of the directory can be requested from the DBE Liaison Officer. 8. DBE Financial Institutions (Part 26.27) It is the policy of the City of Round Rock to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT -assisted contracts to make use of these institutions. The City of Round Rock has researched and collected information on the availability of DBE owned financial institutions in our area at hfi)://www.federaIreserve.gov/releases/mob/ . The list will be available at from the City of Round Rock and will also re-evaluate the availability of DBE financial institutions every year. 9. Unified Certification Program (Part 26.81) The City is a member of the Texas Unified Certification Program (TUCP), which is administered by the Texas Department of Transportation. TUCP will meet all the requirements of this section. The City will use and count for DBE credit only those DBE firms certified by the TUCP. There are six (6) certifying Page 17 agencies for the TUCP and all certifications are done according to the county your firm headquarters is located. Counties of Bastrop, Caldwell, Hays, Travis and Williamson City of Austin, Department of Small and Minority Business Resources 4201 Ed Bluestein Blvd. Austin, Texas 78721 (512) 974-7600 http://austintexas.gov/department/small-and-minority-business Counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller Mayor's Office of Business Opportunity 611 Walker, 7th Floor Houston, Texas 77002 (832) 393-0600 hftp://www.houstontx.gov/obo/index.html Counties of Aransas, Bee, Goliad, Jim Wells, Karnes, Kleberg, Live Oak, Nueces, Refugio and San Patricio Corpus Christi Regional Transportation Authority 5658 Bear Lane Corpus Christi, Texas 78405 (361) 289-2712 http://ccrta.org/about/dbe/ Counties of Collin, Dallas, Denton, Ellis, Erath, Hood, Jack, Johnson, Kaufman, Navarro, Palo Pinto, Parker, Rockwall, Somervell, Tarrant and Wise North Central Texas Regional Certification Agency 624 Six Flags Drive, #100 Arlington, Texas 76011 (817) 640-0606 http://www.nctrca.org/ Counties of Atascosa, Bandera, Bexar, Comal, Frio, Guadalupe, Kendall, Kerr, McMullen, Medina, Uvalde and Wilson South Central Texas Regional Certification Agency 3201 Cherry Ridge Street, Building C-319 San Antonio, Texas 78230 (210) 227-4722 hftp://www.sctrca.org/ All other counties in Texas Texas Department of Transportation Office of Civil Rights 125 E. 11 th Street Page 18 Austin, Texas 78701 (512)486-5500 https://www.txdot.gov/business/partnerships/dbe.html 10. Overconcentration (Part 26.33) The City has not identified any areas of overconcentration of DBEs. 11. Business Development Program (Part 26.35) The City has not established a business development program. We will re-evaluate the need for such a program every three years. 12. Required Contract Clauses (Parts 26.13 and 26.29) The City will include the following clause in every DOT assisted contract and subcontract. The clauses apply to DBE and non -DBE subcontractors. Non -Discrimination Contract Assurance Clause The contractor or subcontractor shall not discriminate on the basis of race, color, sex or national origin, sex (including gender identity), disability, age, employment or business opportunity in the performance of this contract. The contractor shall carry out applicable requirements of 49 C.F.R. Part 26 in the award and administration of 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 City deems appropriate. Prompt Payment Contract Clause In accordance with Texas Government Code, Title 10 Chapter 2251 the following applies to the City, contractors and subcontractors. • The City shall pay any payment due to the contractor within 30 days of the date the City receives the goods, the date the performance of the services is completed or the date the City receives a correct invoice, whichever is later. Retainage payments must be made within 30 days after the work is satisfactorily completed. • If the payment to the contractor, from the City, becomes overdue, the contractor may accrue and charge interest starting on the 31 st day at the effective rate on September 1 of the fiscal year in which payment becomes overdue. • The contractor agrees to pay any subcontractors within 10 days of receipt of payment from the City, including retainage payments. The contractor agrees to include this statement in any subcontracts. • The subcontractor agrees to pay any supplier within 10 days of receipt of payment from the City, including retainage payments. The contractor agrees to include this statement in any subcontracts. Page 19 If the prime contractor does not pay a subcontractor promptly, as defined above, the City shall withhold payment of retainage to the prime contractor until such time the prime contractor pays the subcontractor in full. If the prime contractor makes partial payments to the subcontractor, then the City will make partial retainage payments to the prime contractor. In accordance with Texas Government Code, Title 10 Chapter 2251.002 the City, contractor or subcontractors are not required to follow the prompt payment rules in the event: • There is a bona fide dispute between the political subdivision and a vendor, contractor, subcontractor, or supplier about the goods delivered or the service performed that causes the payment to be late; • There is a bona fide dispute between a vendor and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; • The terms of a federal contract, grant, regulation, or statute prevent the governmental entity from making a timely payment with federal funds; or • The invoice is not mailed to the person to whom it is addressed in strict accordance with any instruction on the purchase order relating to the payment. Dispute Resolution If a dispute or claim arises under an agreement, the parties agree to first try to resolve the dispute or claim by appropriate internal means, including referral to each party's senior management. If the parties cannot reach a mutually satisfactory resolution, then resolution may be sought with the help of a mutually selected mediator. If the parties cannot agree on a mediator, then the parties will select their own mediator and those mediators will agree upon a third mediator. Any costs and fees associated with mediation shall be shared equally by the parties. All parties hereby expressly agree no claim or dispute between parties shall be decided by any arbitration proceeding, including without limitation any proceeding under the Federal Arbitration Act or any applicable state arbitration statute. The contractor agrees to include this clause in any subcontracts. 13. Overall Goals, Breakout of Estimated Race -Neutral and Race -Conscious Participation and Contract Goals (Parts 25.45 and 26.51) The City will calculate its triennial overall DBE goal and publish it to show what percentage of the Federal financial assistance in DOT -assisted contracts the City will expend, exclusive of FTA funds to be used for the purchase of the transit vehicles. The City will submit its overall goal to the Federal Transit Administration (FTA) on August 1 st for each of the three- year triennial period. The City will meet the maximum feasible portion of its overall goal by using race -neutral means. Page 110 Methodology The following is a summary of the method to be used to calculate this goal: 1. Total dollars per major NAICS Code area budgeted will be identified for future three years; 2. Base Figures for each major NAICS Code area will be identified by dividing the number of DBEs by the total number of firms in order to obtain the relative availability of DBEs per NAICS Code area; 3. By multiplying the relative availability of DBEs by the total dollars budgeted for each corresponding NAICS Code area, an estimated dollar amount for DBE participation in each area will be obtained. 4. The sum of the estimated dollar amount will be calculated, and it will be divided by the total dollars budgeted for award in three future years to derive an estimated overall goal. 5. This overall goal will then be adjusted considering the median of the previous five-year DBE participation and the base figure. Then, this goal will be adjusted considering the past Race Neutral participation and changes regarding what work can be counted towards a DBE goal, the nature of the projects the City expects to award, and the relative availability of firms in those NAICS code areas. Public Participation Once the City has established a proposed goal, we will publish a notice informing the public the proposed goal is available for inspection at the Transit Center for 30 days and comments will be accepted for 45 days. The notice will include information on how to submit comments and will be published in the local newspaper, minority focused papers and on the city's website. 14. Transit Vehicle Manufacturers Goals (Part 26.49) The City will require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements and to certify that it has complied with the requirements of this section. Alternatively, the City may, at its discretion and with FTA approval, establish project -specific goals for DBE participation in the procurement of transit vehicles in lieu of the TVM in complying with this element of the program 15. Good Faith Efforts (Part 26.53) Information to be Submitted The City treats bidders'/offerors' compliance with good faith efforts requirements as a matter of responsiveness. If the bidder/offeror does not submit the following information by the date and time the bid or proposal is due, the City has grounds to deem the bidder/offeror non -responsive to the DBE requirements of the solicitation. The decision to deem the bidder/offeror non -responsive is not administratively appealable. Bidders/offerors should follow the protest procedures in the solicitation. Each solicitation for which a contract goal has been established will require the bidders/offerors to submit, by the date and time the bid or proposal is due, the following forms: • Contractor/Respondent Certification (See Attachment 1), reflecting: • Names and addresses of DBE firms which will participate in the contract; • Description of work each DBE will perform; Page III • The dollar amount of the participation of each DBE firm participating; and • Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal • DBE Subcontractor Certification (See Attachment 1), reflecting: • Written and signed confirmation from the DBE firm it is participating in the contract as provided in the prime contractor's commitment. If the contract goal is not met, evidence of good faith efforts must be submitted by the bidder/offeror by the date and time the bid or proposal is due. Demonstration of Good Faith Efforts The obligation of the bidder/offeror is to make good faith efforts to include DBEs. The bidder/offeror can demonstrate it has done so either by meeting the contract goal or documenting good faith efforts. Examples of good faith efforts can be found in Attachment A to 49 C.F.R. Part 26, included in Section 3. The DBE Liaison Officer (DBELO) is responsible for determining whether a bidder/offeror, who has not met the contract goal, has document sufficient good faith efforts to be regarded as responsive. The DBELO will ensure all information is complete, accurate and adequately documents the bidder's/offeror's good faith efforts before the City commits to the performance of the contract by the bidder/offeror. Administrative Reconsideration Within five (5) days of being notified by the City that a bidder/offeror is not responsive due to not documenting sufficient good faith efforts, a bidder/offeror may request administrative reconsideration through the City's reconsideration official, Jerry Galloway, 221 East Main Street, Round Rock, Texas 78664, (512) 218-5432, jdg@roundrocktexas.gov. The reconsideration official will not have played any role in the original determination the bidder/offeror did not document sufficient good faith efforts. As a part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issues 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 the City's 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 the bidder/offeror 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 The City requires a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. The City will require the prime contractor to notify the DBELO prior to terminating any DBE firm and immediately of any DBE firm's inability or unwillingness to perform. The prime contractor must provide reasonable documentation for the termination of a DBE firm and/or the DBE's inability or unwillingness to perform. Page 112 In this situation, the prime contractor must provide copies of the new or amended subcontracts or documentation of good faith efforts. If the contractor fails or refuses to comply in the time specified, the City will issue a stop work order or withhold payment until satisfactory action has been taken. If the contractor still fails to comply the City may issue a termination notice for default proceeding. Any DBE firm subject to termination and replacement will have an opportunity to provide a written response to the termination of their subcontract to the DBELO within five (5) days of receiving notice. If the DBELO concurs with the prime contractor, the DBE may use the administrative reconsideration process noted in this section and submit an appeal of the decision to the City's reconsideration official. 16. Counting DBE Participation (Part 26.55) The City will count DBE participation toward overall and contract goals as provided in 49 CFR 26.55. For example: When a DBE participates in a contract, only the value of the work performed by the DBE will count toward the goal (whether a prime or a subcontractor). When a DBE performs as a participant in a joint venture, the City will count a portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the DBE performs with its own forces toward DBE goals. The City will count expenditures to a DBE contractor toward DBE goals only if the DBE is performing a commercially useful function on that contract. ■ If a firm is not currently certified as a DBE in accordance with the standards of this part at the time of the execution of the contract, the City will not count the firm's participation toward any DBE goals, except as provided for in 49 CFR Part 26 Section 26.87(i)). ■ The City will not count the participation of a DBE subcontractor toward the prime contractor's DBE achievements or overall goal until the amount being counted toward the goal has been paid to the DBE. 17. Quotas (Part 26.43) The City does not use quotas in any way in the administration of this DBE Program. 18. Monitoring and Enforcement Mechanisms (Parts 26.37 and 26.107) The City will bring to the attention of the Department of Transportation (DOT) any false, fraudulent or dishonest conduct in connection with this Program so DOT can take the steps provided in 49 C.F.R. Part 26.109 (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules). The City will also consider similar action under our own legal authorities (e.g., breach of contract), including responsibility determinations in future contracts. Page 113 In accordance with 49 C.F.R. Part 26.107, firms participating in the City's DBE Program face the following enforcement actions: • If a firm which does not meet the eligibility criteria of 49 C.F.R. Part 26 Subpart D and attempts to participate in a DOT assisted program as a DBE on the basis of false, fraudulent or deceitful statements, representations or under circumstances indicating a serious lack of business integrity or honesty the Department of Transportation may initiate suspension or debarment proceedings against you under 2 C.F.R. Parts 180 and 1200. If a firm that, in order to meet DBE contract goals or other DBE Program requirements, uses or attempts to use, on the basis of false, fraudulent or deceitful statements, representations or under circumstances indicating a serious lack of business integrity or honesty, another firm which does not meet the eligibility criteria of 49 C.F.R. Part 26 Subpart D, the Department of Transportation may initiate suspension or debarment proceedings against you under 2 C.F.R. Parts 180 and 1200. • In a suspension or debarment proceeding brought under the previous two paragraphs, FTA may consider the fact a purported DBE has been certified by a recipient. Such certification does not preclude the Department of Transportation from determining the purported DBE or another firm that has used or attempted to use it to meet DBE goals should be suspended or debarred. • The Department of Transportation may take enforcement action under 49 C.F.R. Part 31, Program Fraud and Civil Remedies, against any participant in the DBE Program whose conduct is subject to such action under 49 C.F.R. Part 31. • The Department of Transportation may refer to the Department of Justice for prosecution under 18 U.S.C. 1001 or other applicable provisions of law, any person who makes a false or fraudulent statement in connection with participation of a DBE in any DOT assisted program or otherwise violates applicable Federal statutes. In addition to the enforcement actions listed in this section, contractors also face any other enforcement actions listed in this Program. The City will perform the following monitoring activities: • Review a sampling of DBE contracts for each project; • Monitor the work of the DBEs, in association with a contract, to ensure the DBE firm is performing the work; • Require the prime contractor to submit monthly payment reports on form Contractor Payment Report Form (See Attachment 1); • Keep a running tally of actual payments to DBE firms; and • Produce written certification the monitoring of work sites and review of contracts took place Page114 19. Reporting, Bidders List and Confidentiality (Parts 26.11 and 26.109) Reporting The City will report DBE participation on a semi-annual basis (June 15t & December 1It), using the report form required by the FTA. These reports will reflect all the required information and only the federal portion. Bidders List The City will create and maintain a bidders list, consisting of information about DBE and non -DBE firms who bid or quote on DOT assisted contracts. The purpose of this requirement is to allow use of the bidders' list approach in calculating overall goals. The bidders list will include the name, address, DBE status, age and annual gross receipts of each firm. The City will collect this information from bid proposals and by requesting the information from contractors and subcontractors, when needed. Confidentiality The City will safeguard from disclosure, to third parties, information which may reasonably be regarded as confidential business information consistent with federal, state and local laws. The City requires all contracting parties to expressly acknowledge the City is a Texas municipality and as such is subject to the Texas Public Information Act, Title 5 Chapter 552 of the Texas Government Code. 20. Small Business Participation (Part 26.39) To facilitate competition by small business concerns, the City will make efforts to expend a portion of DOT assisted contracts with small businesses using the following strategy. Small businesses cannot exceed the Small Business Size Limits, as defined by the Small Business Administration (SBA). These limits can be found at https://www.sba.gov/document/support--table-size-standards. On prime contracts, without DBE contract goals, the City will encourage prime contractors to provide subcontracting opportunities to small businesses, rather than self -performing all the work involved. During the procurement process and subsequent contract, the bidder/offeror will be required to: • Identify and attempt to subcontract work within the contract to small businesses to perform the tasks. If the prime contractor cannot contract with a small business, they will be required to submit proof of their good faith efforts, e.g. phone log, emails, etc., to find a small business to perform the work; • Verify the small business is eligible to participate as a small business. The SBA provides a self - certifying database to search for firms, http://dsbs.sba.gov/dsbs/search/dsp dsbs.cfm. The SBA strongly recommends reviewing a bidder's small business self -certification before awarding a contract. • Submit the small business(es) information on the Contractor/Respondent Certification form (See Attachment 1) with the bid or proposal; • Submit the Small Business Subcontractor Certification form (See Attachment 1) with the bid or proposal. This form is completed by the small business; and Page 115 • Submit the Contractor Payment Report form (See Attachment 1) with the monthly invoices throughout the life of the contract. If the City has a large contract it will attempt to identify possible portions of the contract which could be unbundled and bid separately to help small businesses participate in City contracts funded in part by DOT funds. The City will send the bid solicitation to eligible small businesses by utilizing the SBA eligible firm list. In addition, the City will present information on the small business participation element during its outreach presentations to different groups in and around the community. 21. Shortfall Analysis (Part 26.47) At the end of any DBE year in which the City does not achieve its DBE goal as reflected for that year in the City's Triennial DBE Goal, the Ci will perform a Shortfall Analysis. The DBELO will conduct this Shortfall Analysis within two (2) months of the close of the DBE year The Shortfall Analysis will analyze, in detail, the reasons for the difference between the DBE goal for that year and the actual DBE participation for that year. The Shortfall Analysis will take into account any efforts previously undertaken by the agency to achieve the DBE Goal. To increase the likelihood that the City will achieve its DBE Goal in future years, the DBELO will develop an action plan which will include: Outreach to vendors who were invited to participate in the City's contracting opportunities to identify the reasons for their non -participation, and Investigate and utilize other available resources and methods to encourage DBE participation in future contracting opportunities. 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