Equal business opportunity (EBO) subcontracting program.
Memphis Code of Ordinances § 6-92-2
in effectSec. 6-92-2. - Equal business opportunity (EBO) subcontracting program.
A. Program requirements.
1. All bidders/proposers are required to make efforts to ensure that businesses are not discriminated against on the basis of their race, ethnicity or gender, and to demonstrate compliance with these program requirements at or prior to the time of bid opening, or upon request by OBDC. Bidders/proposers are required to ensure that prospective subcontractors, vendors, suppliers and other potential participants are not denied opportunities to compete for work on a city contract on the basis of their race, ethnicity, or gender, and must afford all firms, including those owned by racial or ethnic minorities and women, opportunities to participate in the performance of the business of the city to the extent of their availability, capacity and willingness to compete.
2. OBDC will review information submitted by bidders/proposers pertaining to efforts to promote opportunities for diverse businesses, including MWBEs, to compete for business as subcontractors and/or suppliers. A bidder is eligible for award of a city contract upon a finding by OBDC that the bidder has engaged in, and provided with its bid submission documentation of, efforts to ensure that its process of soliciting, evaluating and awarding subcontracts, placing orders, and partnering with other companies has been nondiscriminatory. To assist prime contractors in this effort, the office of business diversity and compliance (OBDC) shall set forth in the solicitation documents for the eligible project the availability of businesses, including certified MWBEs within the relevant NAICS Codes for such eligible project.
B. Incorporating EBO chapter in contracts.
1. All proposals, bid specifications and contracts for projects which have participating goals, will incorporate by reference this chapter and all city procedures established pursuant thereto, and will contain the following clause:
"The contractor further agrees that its breach of the EBO provisions in the city's EBO ordinance shall subject it to any or all of the following penalties:
a. If the contractor is a MWBE, denial of recognition as an approved MWBE, for purposes of contracting with the city, for a period not to exceed two years;
b. Withholding of ten percent of all future payments on the involved project until it is determined that the contractor is in compliance;
c. Exclusion from submitting a bid or proposals for a period not to exceed five years;
d. Termination by the city of the contract;
e. Any other penalty under section 6-92-6."
2. All contracts for projects with participation goals will require the prime contractor to pay all MWBE subcontractors their pro-rata share of progress payments made by the city to the prime contractor. The pro-rata share will be based on all work completed and materials furnished by the subcontractors in the period for which the progress payment was made. Payments will be made within a reasonable period of time (as specified by the city's EBO procedures), unless the prime contractor has good cause for not making any such payments. The payments may be reduced by the pro-rata share of retainage withheld from the prime contractor up to a maximum of five percent. The contracts will also require the prime contractor, prior to receiving a progress payment from the city, to certify that it has paid all previous progress payments to MWBE contractors, unless the contractor demonstrates good cause for not making any such payments and furnishes written notification of any such cause to the user division, the office of business diversity and compliance and the affected MWBE subcontractor.
3. All contracts for projects with participation goals will require the prime contractor to report all payments to and utilization of MWBE subcontractors and all other subcontractors for review and approval before final payment is made by the city under the contract.
C. Subcontractor project plan.
1. Subcontractor project plan. Each successful bidder shall submit with her/his executed contract a completed and signed subcontractor project plan, in a form approved and provided by the office of business diversity and compliance (OBDC), which lists the name, address, telephone number and contact person of each subcontractor or other business to be used in the contract, the NAICS Code and the type of work or service each business will perform, the dollar value of the work and the scope of work, the ownership of each business by race and gender, if applicable the AABE, HBE, ABE, NABE, or WBE certification number of each business, and any other information requested by the office of business diversity and compliance (OBDC). However, each bidder shall submit with her/his bid the names, address, percent of bid allotted, dollar value of bid allotted to each MWBE. In order for the office of business diversity and compliance (OBDC) to officially consider a firm to be an MWBE, the MWBE firm must be approved by the office of business diversity and compliance (OBDC) and certified by a city approved certification agency prior to the bidder's submission of the bid or proposal.
D. OBDC review of bidder submissions. The OBDC shall determine whether a bidder has satisfied all contracting requirements as requested by this chapter, the subcontractor project plan, good faith effort documentation and its review of other relevant facts and circumstances, including complaints received as part of the bid or proposal process and other bidders. In reviewing the documents submitted by a bidder to determine whether the bidder has satisfied the good faith efforts requirement of this section, the office of business diversity and compliance (OBDC) will consider, among other things, the total project dollars subcontracted to or expended for services performed by other businesses, including certified MWBEs, whether such businesses perform commercially useful functions in the work of the contract based upon standard industry trade practices, whether any amounts paid to supplier businesses are for goods customarily and ordinarily used based upon standard industry trade practices, and the availability of certified MWBEs within the relevant NAICS Codes for such eligible project.
1. Receipt of complaint of discrimination in the bid process. The office of business diversity and compliance (OBDC) shall accept complaints of alleged discrimination during the bid process regarding any participant in the bid process. Where the complaint of discrimination is specific to the procurement which is under consideration by the city, the office of business diversity and compliance (OBDC) will investigate said complaint, determine its validity, and determine whether the actions complained of impact the bidder's responsiveness on the specific procurement. The accused will have the opportunity to review the complaint and respond in writing to the allegations of discrimination. Allegations of discrimination based on events, incidents or occurrences which are unrelated to the specific procurement may be placed in the bidder's file maintained in the OBDC. Complaints of discrimination will be one component taken under consideration when good faith efforts documentation has been filed.
2. Determination of violation of EBO process. Where the office of business diversity and compliance (OBDC) investigates a complaint of discrimination that is related to the specific bid process, as described in section 6-92-2(D)(1). above, the details of that investigation shall be recorded and maintained in the OBDC pursuant to section 6-92-2(D)(1).
E. Equal business opportunity subcontracting program bid process. The covenant of nondiscrimination, the subcontractor project plan, good faith efforts documentation and any other information required by OBDC in the solicitation document must be completed in their entirety by each bidder and submitted with the other required bid documents in order for the bid to be considered as a responsive bid. Failure to timely submit these forms, fully completed, will result in the bid being considered as a nonresponsive bid, and therefore, excluded from consideration.
F. Contract progress. The office of business diversity and compliance (OBDC) shall require contractors on eligible projects to complete and submit to OBDC documentation regarding their utilization of MWBEs, along with all other pertinent records required by OBDC. Said documentation shall be in a format that is established by the office of business diversity and compliance (OBDC). These records will be submitted to OBDC monthly. The subcontractor project plan shall not be changed or altered after approval of the plan and award of the contract without the written approval of the OBDC. A written letter to the CCO requesting approval to change the subcontractor project plan must be submitted prior to any change in the plan or termination of an MWBE's contract.
G. Database. The city will maintain a database identifying MWBEs that will include the types of services provided by the business enterprise and contact information for the business enterprise. A list from the database will be made available to bidders to assist them in their efforts to meet the requirements of the equal business opportunity subcontracting program. The list prepared from the database will specify which firms the city has determined to be certified minority and women owned business enterprises, in accordance with the city definitions for MWBEs. This list is not exhaustive.
H. Minority and women business enterprise utilization. To ensure that the equal business opportunity subcontracting program achieves its purpose, the OBDC will verify the MWBE certification status of each firm claiming such designation. Only certified MWBEs may be designated in reports as MWBEs for purposes of city projects. The percentage of MWBEs utilized by a bidder will be calculated by dividing the MWBE's price for providing direct labor or a bona fide service by the bidder's total dollars as identified in the bid.
I. Equal business opportunity program compliance, monitoring and audit. The city reserves the right to conduct an audit of a bidder's work on an eligible project to confirm the bidder's compliance with this equal business opportunity subcontracting program, including without limitation compliance with the covenant of nondiscrimination, the good faith efforts documentation, and the subcontractor project plan.
J. Prohibition against discrimination and reporting allegations. Bidders shall prohibit discrimination against any person or business on the basis of race, color, creed, religion, sex, domestic relationship status, parental status, familial status, sexual orientation, disability, age, national origin, political affiliation, gender identity, or racial profiling. Bidders shall develop a written policy statement that shall be approved by the office of business diversity and compliance (OBDC) and distributed to all employees. Bidders shall conduct their contracting and purchasing programs so as to prohibit any discrimination and to resolve all allegations of discrimination. Bidders shall include a clause in its subcontracts that require the subcontractor to adopt and distribute a written nondiscrimination policy that is the same as that of the contractor. The office of business diversity and compliance (OBDC) shall review and investigate all allegations of discrimination which claim that prohibited forms of discrimination have occurred. Allegations of discrimination that are determined to have merit may be subject to penalties decided upon by the OBDC in consultation with the initiating department.
K. Penalties. Breach of the equal business opportunity subcontracting program by a bidder shall be subject to any or all of the penalties set forth in section 6-92-6 below.
(Ord. No. 5662, § 1(2-326), 11-7-2017)
Source: City of Memphis, Code of Ordinances and Charter and Related Laws (Municode Library, library.municode.com)URL: https://library.municode.com/tn/memphis/codes/code_of_ordinances?nodeId=TIT6BULIRE_CH6-92EQBUOPPR_S6-92-2EQBUOPEBSUPRFetched: 10/28/2026