§ 28-137 — Participation goals—Potential violations—Contracts for services

Sec. 28-137. - Participation goals—Potential violations—Contracts for services.

(a) A vendor, contractor or consultant that has been awarded a city contract or purchase order based upon a given level of MWBE participation shall not, at any time before or during the performance of such contract or purchase order: (1) Fail to in fact utilize an MWBE that was originally listed at bid or proposal opening in order to satisfy the participation goal, and that submitted a timely letter of intent, without substituting another MWBE performing the same commercially useful function and dollar amount, or demonstrating good faith efforts, as defined in subsection (d) hereof, to substitute another MWBE; or (2) Fail to allow an MWBE functioning as a subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative, or broker to perform the commercially useful function, the value of which was originally counted for that MWBE in awarding the contract or purchase order; or (3) Modify or eliminate all or a portion of the services attributable to an MWBE upon which the contract was awarded, unless directed by the city; or (4) Terminate an MWBE originally utilized as a subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative or broker in order to be awarded the contract without replacing such MWBE with another MWBE, performing the same commercially useful function and dollar amount, or demonstrating good faith efforts, as defined in subsection (c) hereof, to substitute another MWBE; all subject to DSBO approval; (5) Retaliate against any MWBE that reports issues to the DSBO or purchasing division or user department; (6) Participate in a conduit relationship with an MWBE scheduled to perform work on the contract or purchase order; (7) Otherwise fail to meet the participation goal without complying with good faith efforts or other requirements; or (8) Commit any other violation of this article V, or rules and regulations promulgated hereunder, which constitutes a material breach of the contract, not mentioned above. (b) Any action by a vendor, contractor or consultant in violation of subsections (a)(1) through (8) hereof, shall constitute a material breach of the city contract or purchase order that shall entitle the city to exercise all of its rights at law or equity for such material breach, in addition to exercising any of the other sanctions set out in subsection 28-139(c). (c) If, following award of a contract or purchase order, an MWBE has its certification terminated for reasons other than: (1) Expiration from certification; (2) Graduation from certification; (3) Nonperformance of a commercially useful function, the value of which was originally counted for that MWBE, as applicable, when the contract or purchase order was awarded; or (4) The voluntary withdrawal of MWBE participation on the contract or purchase order, such termination of certification or failure to perform a commercially useful function shall not be deemed to affect compliance with the participation goal, and shall not be deemed a breach of the contract or purchase order as long as the vendor, contractor or consultant can demonstrate that such termination or failure did not result from any action or inaction, whether direct or indirect, of or by the vendor, contractor or consultant. In such event, the vendor, contractor, or consultant will substitute another MWBE, performing the same commercially useful function and dollar amount, or will demonstrate good faith efforts to substitute another MWBE, as defined in subsection (d) below. (d) In the event that a vendor, contractor or consultant must add or replace an MWBE subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative, broker or distributor or in the event that a new services are added to the ongoing contract or purchase order, and the vendor, contractor or consultant in such event is in noncompliance with maintenance of the original participation goal upon which the contract or purchase order was awarded, due to failure to utilize additional MWBEs, the vendor, contractor or consultant shall be required to demonstrate good faith efforts in compliance with section 28-128 or 28-136 as applicable. Failure of a vendor, contractor or consultant to show good faith efforts shall render its contract performance in noncompliance with this article V.

(Ord. No. 286-20, § 3, 4-13-20)