§ 17-1603. Economic Opportunity Plan: Contents.
(1) For a Covered Project or Contract subject to City Council approval (other than a Covered Project or Contract subject to subsection 8-200(2) or Section 8-201 of the Home Rule Charter), an Economic Opportunity Plan prototype shall be produced by the certifying agency in conjunction with Council, and serve as the primary form for submission and compliance procedures in accordance with the provisions of this Chapter: 212
(a) The Economic Opportunity Plan prototype and associated contract or project specific details shall be developed and agreed to by the contracting agency, the certifying agency, representatives of City Council designated by the Council President; and, subsequently, by the contractor, developer or recipient of financial assistance. The contents therein shall constitute the entire Economic Opportunity Plan. Provisions for compliance shall include, though not necessarily be limited to, the following commitments: 213
(.1) To provide (.a) meaningful and representative opportunities for M/W/DSBEs to participate in all phases of the Covered Project or Contract; and (.b) an appropriately diverse workforce in all phases of the Covered Project or Contract with regard to minority, female and disabled persons. In furtherance thereof, the contractor, developer or recipient of financial assistance shall use its best and good faith efforts, as defined by the Plan.
(.2) To include in all contracts with Participants, pursuant to the Covered Project or Contract, an enforceable requirement that each Participant abide by the provisions of the Economic Opportunity Plan as set forth therein, pursuant to subsection (.1) of this Section, in all phases of the Covered Project or Contract.
(.a) The contractor, developer or recipient of financial assistance shall include the requirements of the Plan in all requests for proposals, bid packages and solicitations issued pursuant to the Covered Project or Contract.
(.b) Every such contract shall include and define the specific steps, in the form of and/or as stipulated by the Plan, that shall satisfy the Participant's obligation to exercise its best and good faith efforts, including specific outreach and solicitation of M/W/DSBEs for participation in the Covered Project or Contract, and specific outreach and solicitation of a diverse workforce, and including requirements that the contractor submit to the contracting City agency or department and to MBEC documentation of all such steps.
(.c) The contractor, developer or recipient of financial assistance shall agree to engage in specific monitoring steps to insure compliance by all Participants.
(.d) The contractor, developer or recipient of financial assistance shall agree to include in all contracts with Participants provisions for enforcement of the requirements of the Plan, including but not limited to suspension of payments and cancellation of any contracts for non-compliance, and provisions for appealing any finding of non-compliance.
(.3) To take specific, identified steps to ensure that all M/W/DSBE subcontractors on the Covered Project or Contract are timely paid all moneys owing to them under their subcontracts, and that any disputes that may delay payment are promptly resolved.
(b) The contractor, developer and/or recipient of financial assistance shall be required to engage in an Oversight Process.
(.1) For all Covered Projects or Contracts where the dollar value is in excess of five million dollars ($5,000,000) , the Plan shall establish a Project or Contract Oversight Committee, consisting of, as appropriate, the contractor, developer or recipient of financial assistance and representatives of the Participants, the certifying agency, City Council, the contracting department or agency and appropriate community organizations. Such Committee shall meet regularly, beginning no later than the initiation of the design phase of the Covered Project or Contract, and shall be responsible for facilitating compliance with the Plan. The Oversight Committee, through the Oversight Process, shall have within its purview the reconciliation of all compliance related issues or grievances. 214
(.2) The Oversight Committee Process, as needed or as stipulated by the Plan, will involve convening individual consultation or periodic small group meetings to include any or all of the parties identified above in subsection (.1).
(c) The Plan shall contain, to the extent such information is available to the certifying agency: (.1) a statement of availability of M/W/DSBEs (expressed in percentage of contract and subcontract value) for various project, contract and subcontract categories; and, (.2) a statement of availability of minority, female and disabled workers in the relevant marketplace for employment, in various job categories. Percentages of availability contained in the Plan shall serve as a guideline for compliance and not the uppermost limit of meaningful participation which may be achieved during any Covered Project or Contract. The contractor, developer or recipient of financial assistance shall commit to using best and good faith efforts, as defined by the Plan, to achieve meaningful and representative participation by M/W/DSBEs, and meaningful and representative employment of minority, female and disabled workers, in all phases of the Covered Project or Contract. Best and good faith efforts, as further defined in the Plan, shall be of such scope, intensity and appropriateness designed to achieve the objectives of this Chapter. 215
(d) Best and Good Faith Efforts. 216
(.1) Best and good faith efforts are those efforts, the scope, intensity and appropriateness of which are designed and performed to foster meaningful and representative opportunities for participation by M/W/DSBEs and an appropriately diverse workforce and to achieve the objectives of Economic Opportunity Plans. Best and good faith efforts will be deemed adhered to when a Participant meets the criteria set forth hereunder, as well as in the plan, and demonstrates and documents its efforts throughout the duration of the Project or Contract.
(.2) The contractor, developer or recipient of financial assistance shall commit to using best and good faith efforts, as defined hereunder and by the Plan to achieve meaningful and representative participation by M/W/DSBEs, and an appropriately diverse workforce, in all phases of the Covered Project or Contract.
(.3) As evidence of Best and Good Faith Efforts, except where a Participant commits in the Plan to meet particular participation goals, each Participant must submit with its Plan a completed Best and Good Faith Efforts Form (BGFE). The BGFE form shall evidence how best and good faith efforts were made to achieve the goals of the Plan, even if the goals were not met. The BGFE Form must include, at a minimum,
(.a) certification and evidence that the following actions were taken:
(i) Solicitation directed to qualified M/W/DSBEs registered with OEO and qualified M/W/DSBEs certified by agencies approved by OEO. Participant must determine with reasonable certainty if the M/W/DSBEs are interested by taking appropriate steps to follow up on initial solicitation; one time contact, without follow up, is not acceptable.
(ii) The Participant provided interested M/W/DSBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation;
(iii) The Participant negotiated in good faith with interested M/W/DSBEs. A Bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including M/W/DSBE subcontractors, and would take a firm's price and capabilities as well as the objectives of the Plan into consideration.
(.b) documentation of the following:
(i) Any commitments to use M/W/DSBEs in its bid for subcontracted services and materials supply even when the non-MBEs, WBEs and DSBEs Participant might otherwise prefer to perform/supply these items without subcontracting.
(ii) Correspondence between the contracting firm and any M/W/DSBE firms.
(iii) Attendance logs and/or records of any scheduled pre-bid or pre-proposal meeting; and
(.c) certification and evidence that the following actions were taken or documentation of the following, or an explanation why these actions were not taken or why documentation does not exist:
(i) Any arms length business assistance provided to interested M/W/DSBEs which may include access/introduction to major manufacturer/suppliers, lines of credit and union halls.
(ii) Solicitation through job fairs, newspapers, periodicals, advertisements and other organizations or media that are owned by M/W/DSBE and/or that focus on M/W/DSBEs.
(iii) Telephone logs.
(iv) Notification of and access to bid documents at the contracting firm's office or other office locations for open and timely review.
(v) Participant sought assistance from the Greater Philadelphia Urban Affairs Coalition, Careerlink Philadelphia, Opportunity Industrial Center and the Philadelphia Workforce Development Corporation ("PWDC") to perform employment outreach.
(vi) Participant published its policy of nondiscrimination in the hiring, retention and promotion of employees.
(vii) Any agreement with an apprenticeship or training program that targets the employment of minority persons, disabled persons and women.
(e) The Plan shall contain a certification from the certifying agency that the contents of the Plan are in compliance with this Chapter or a certification from the certifying agency why compliance with any particular requirement of this Chapter is not feasible or appropriate. Within fifteen (15) days of receiving such certification, the contractor, developer or recipient of financial assistance shall submit a full and final copy of the Plan to the Chief Clerk of Council and the certifying agency shall make a full and final version of the plan available for viewing and downloading on the City's website. 217
(f) The Plan shall contain a statement from the contractor, developer and/or recipient of financial assistance summarizing past practices by identifying and describing examples of processes used to develop diversity at any/all levels of its organization including, but not limited to, Board and managerial positions. This statement shall also summarize strategic business plans specific to current or past practices of M/W/DSBE utilization on government and non-government projects and procurement. Where appropriate, such a statement should contain: (.1) Board, management, and general employment demographics by race, gender, and residential status; (.2) list of M/W/DSBEs utilized by project and date; (.3) whether the M/W/DSBE was certified; (.4) size and scope of contract; (.5) dollar/percentage amount of M/W/DSBE participation; (.6) information on minority and women investment, equity ownership, and other ownership or management opportunities initiated; and (.7) other information requested by City Council during consideration of the Plan. Upon review, if there is no previous M/W/DSBE utilization, the Plan shall contain a statement that explains the reason for the lack of M/W/DSBE participation in past contract(s) or project(s). 218
(f.1) The Plan shall contain a statement from the contractor, developer or recipient of financial assistance identifying all City contracts and financial assistance entered into or received by the entity and by any related corporate entities in the three years before execution of the EOP, or such greater amount of time as may be set forth in the record retention requirement of an applicable EOP, that were subject to an EOP that contained M/W/DSBE goals and/or workforce diversity goals. For purposes of this subsection (f.1), "related corporate entities" means any business entity controlled by a person or business with a majority interest in the business agreeing to the EOP. 219
(g) Statement of Equity Ownership. 220
(.1) For the purposes of this subsection (g), the following definitions of Equity Ownership apply:
(.a) For a sole proprietorship: the percentage owned and controlled by a minority person, woman or disabled person.
(.b) For a partnership: the percentage of the beneficial ownership interests held by one or more minority persons, women or disabled persons.
(.c) For a corporation or other entity that is not a sole proprietorship or partnership: the percentage of the beneficial ownership interests in such corporation or entity held by one or more minority persons, women or disabled persons.
(.2) Initial Reporting Requirement. The Plan shall state the Equity Ownership of the contractor, developer and/or recipient of financial assistance; and the Equity Ownership of any Participants identified at the time the Plan is submitted to the certifying agency for certification. If the Covered Project or Contract to which the Plan relates concerns a project that will be privately owned upon its completion, the Plan shall also state the anticipated Equity Ownership of the eventual project owner or owners.
(.3) Continuing Reporting Requirements.
(.a) Within 30 days of each anniversary of the date that the Plan is finally certified, the contractor, developer and/or recipient of financial assistance shall file with the Chief Clerk of Council and the certifying agency an addendum to the original Plan that provides the Equity Ownership information required in subsection (g)(.2), updated so that it is accurate as of the anniversary date. This requirement shall continue until the project is completed.
(.b) The final EOP report required pursuant to subsection 17-1604(2)(a) shall include updated Equity Ownership information that is accurate as of the date of the final report.
(.c) After the final EOP report has been filed, the owner or owners of the completed project shall have a continuing obligation to file a Statement of the owner's or owners' Equity Ownership within 30 days of each anniversary of the date that the final EOP report is submitted. The Statement shall be accurate as of the relevant anniversary date, and shall be filed with the Chief Clerk of Council and the certifying agency. No Statement shall be required if the completed project is not privately-owned.
(h) First Source Jobs Policy. 221 The plan for any covered project or contract that includes financial assistance reasonably anticipated to exceed the amount specified in subsection 17-1601(1) shall include a statement acknowledging the requirements of the First Source Jobs Policy contained in Chapter 17-2000; and certification from the certifying agency that the recipient of financial assistance has entered into, or has committed to enter into, a First Source Employment Agreement required by Section 17-2002. When signed, such agreement shall be appended to, and made part of, the certified Economic Opportunity Plan. The City department or agency designated as responsible for the implementation and enforcement of the First Source Jobs Policy shall coordinate its efforts with those of the Economic Opportunity Review Committee established in Section 17-1607. The Economic Opportunity Review Committee established in Section 17-1607 shall be responsible for reviewing the implementation and enforcement of the First Source Jobs Policy with respect to any covered project or contract that includes financial assistance reasonably anticipated to exceed the amount specified in subsection 17-1601(1). Non- compliance with the requirements of the First Source Jobs Policy shall be considered a failure to comply with the provisions of this Chapter, subject to the penalties of Section 17-1606 in addition to any other applicable penalties.
(i) Commercially Acceptable Function and Credit Towards Participation Goals. 222
(.1) A contractor that enters into a subcontract with an M/W/DSBE shall be considered to have made a Best and Good Faith Effort only if its M/W/DSBE subcontractor performs a Commercially Acceptable Function. Evidence of a Commercially Acceptable Function shall be the M/W/DSBE engaging in meaningful work or supply effort that provides for a distinct element of the subcontract (as required by the work to be performed and described in the bid specifications), where the distinct element is worthy of the dollar amount of the subcontract and where the M/W/DSBE carries out its responsibilities by actually performing, managing and supervising the work involved; M/W/DSBE subcontractors must perform at least twenty percent (20%) of the cost of the subcontract (not including the cost of materials, equipment or supplies incident to the performance of the subcontract) with their own workers. M/W/DSBE suppliers must negotiate the price of the materials, determine the quality and quantity of the materials, order the material, take title to and pay for the material itself, and be responsible for the transport of the material to the job site. In addition, an M/W/DSBE supplier must verify its ability to make delivery of supplies, to maintain inventory, as well as verify its number of employees and its line of credit. An M/W/DSBE does not perform a commercially acceptable function if its role is limited to that of an extra participant in the contract through which funds are passed in order to obtain the appearance of a Best and Good Faith Effort.
(.2) Credit will be provided towards the participation goals only for work and/or material supply that is commercially acceptable; the amount of credit provided will depend upon an evaluation of the amount of work subcontracted, the method of material supply, industry practices and any other factors relevant to an assessment of Commercially Acceptable Function. An M/W/DSBE's work or material supply will not receive credit unless the M/W/DSBE is certified in a NAICS code applicable to the kind of work or supply effort the business is to perform under the contract. The following will be taken into consideration:
(.a) Supply and Install. A contractor using an M/W/DSBE to supply and install equipment or materials will receive credit for the entire transaction provided the M/W/DSBE actually performs the work of installation with its own workers and obtains the materials by negotiating price, determining quality and quantity, ordering the material, and paying for the material itself. The use of a joint check for payment of the material may be allowable provided there is no circumvention of the M/W/DSBE's responsibilities.
(.b) Non-Stocking Supply. A contractor using an M/W/DSBE non-stocking supplier (i.e., a broker, a firm that does not manufacture or regularly deal in the materials or equipment of the general character required under the contract) to furnish equipment or materials will only receive credit for the fees or commissions charged, not the entire value of the equipment or materials furnished. Credit will be given only for fees that are reasonable and not excessive as compared with fees customarily allowed for similar services. No credit will be given for any portion of the cost of the materials and supplies themselves toward the participation goals.
(.c) Material Supply. A contractor using an M/W/DSBE to supply materials or equipment will receive credit for the entire value of the supply effort if the materials or equipment are supplied by an M/W/DSBE who is a regular dealer in the material or equipment required by the bid specifications and the M/W/DSBE regular dealer negotiates the price of the material or equipment, determines quality and quantity, orders the material or equipment, takes title to and pays for the material or equipment itself and takes responsibility for transporting the material or equipment to the job site.
(2) For a competitively bid contract subject to subsection 8-200(2) or Section 8-201 of the Home Rule Charter:
(a) The Economic Opportunity Plan prototype shall be obtained by the bidder and submitted with the bid, in accordance with said prototype Plan provisions developed by the certifying agency and set forth in the bid specifications. In developing such prototype Plan and provisions for submission, the certifying agency shall work in conjunction with Procurement and the contracting agency. As closely as possible, and consistent with competitive bidding rules, the prototype Plan and provisions shall be substantially similar to and consistent with the provisions of subsection (1), above, relating to City Council approved Covered Contracts and Projects. To the extent feasible, such prototype Plan and provisions set forth in the bid specifications shall be uniform in content and structure for all contracts or for all contracts within any category of contracts. Within fifteen (15) days of being awarded the bid, the winning bidder shall submit a full and final copy of the Plan to the Chief Clerk of Council and the certifying agency shall make a full and final version of the plan available for viewing and downloading on the City's website. 223
(3) Workforce Diversity Contract Requirements. 224 Every contract for City Work that must include an Economic Opportunity Plan pursuant to the requirements of this Chapter, and that contains Workforce Diversity requirements pursuant to subsection 17-1603(1)(a)(.1)(.b), shall contain provisions requiring the contractor to:
(a) post the applicable Workforce Diversity requirements in an area easily accessible by all employees on each job site;
(b) submit to the Labor Standards Unit a compilation contractor listing and a plan for meeting Workforce Diversity goals no later than seven (7) days before the starting date of work on any such contract, and to notify the Unit of any changes in the information contained in such listing within five (5) days of any such changes. Plans for meeting Workforce Diversity goals shall include specific availability and utilization strategies for meeting Workforce Diversity goals. The compilation listing shall include, for each contractor and subcontractor working on the contract, the information required under subsection 17-107(2)(e) of the Code;
(c) keep an accurate record showing the name, address, social security number, demographic information, occupational classification, wages and other benefits paid or provided, and number of hours worked for each employee assigned to work on such contract, and such record shall be preserved at the current place of business of the employing contractor for two years from the date of final payment on the contract.
(d) make its accounting and employment records and records relating thereto available for inspection by authorized representatives of the Unit, at all reasonable hours, permit such representatives to interview employees during the hours on the job, all without prior notice, and prohibit any employee or other person from interfering with any such inspection or interview;
(e) maintain written evidence of the registration of approved programs under which apprentices are employed, including demographic information and the ratios and wage rates prescribed in the applicable programs;
(f) upon commencement of the work, submit to the Unit directly, or, if a subcontractor submitting based on the requirements of Subsection (g) below, through the prime contractor, certified payrolls on a weekly basis, not later than seven (7) days after completion of the work week, in the same manner as such records are required under subsection 17-107(4) of the Code, with demographic information for each worker included with the certified payroll information; and
(g) require all subcontractors engaged in service work on the contract to comply with and be bound by the requirements of this subsection 17-1603(3) as well as any requirements established pursuant to subsection 17-1603(1)(a)(.2).
Notes
212 | Amended, Bill No. 110559 (approved October 26, 2011).
213 | Amended, Bill No. 110559 (approved October 26, 2011).
214 | Amended, Bill No. 110559 (approved October 26, 2011); amended, Bill No. 161106 (approved October 11, 2017).
215 | Amended, Bill No. 110559 (approved October 26, 2011).
216 | Added and subsequent subsections renumbered, Bill No. 100135 (approved September 1, 2010).
217 | Amended, Bill No. 110559 (approved October 26, 2011).
218 | Added, Bill No. 090095 (approved March 25, 2009).
219 | Added, Bill No. 170849-A (approved January 23, 2018), effective July 23, 2018.
220 | Added, Bill No. 140640 (approved October 29, 2014).
221 | Added, Bill No. 150010 (approved February 25, 2015); amended, Bill No. 160325 (approved June 28, 2016); amended, Bill No. 160129 (approved September 6, 2016).
222 | Added, Bill No. 210632 (approved November 17, 2021).
223 | Amended, Bill No. 110559 (approved October 26, 2011).
224 | Added, Bill No. 160003 (approved April 5, 2016).
