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Compliance with committed SBE, SBEC, or EBE contractor, consultant or concessionaire performance and minimum SBE, SBEC, or EBE subcontractor utilization required throughout performance of contract or concession agreement.

Denver Revised Municipal Code § 28-222
in effect
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Sec. 28-222. - Compliance with committed SBE, SBEC, or EBE contractor, consultant or concessionaire performance and minimum SBE, SBEC, or EBE subcontractor utilization required throughout performance of contract or concession agreement. (a) Upon award of a defined selection pool contract or concession agreement by the city, including those containing a minimum SBE, SBEC, or EBE utilization requirement, compliance with the performance and utilization requirements set out in this article VII by the bidder or proposer becomes a covenant of performance by the contractor or consultant in favor of the city. (b) All contracts and concession agreements subject to this article VII shall be reviewed by the DSBO for compliance with the provisions hereof. This review shall examine, but not be limited to, whether the SBE, SBEC, or EBE contractor, consultant or concessionaire performance dollar amounts and percentages and achievement of defined selection pool requirements and minimum utilization of SBE, SBEC, or EBE subcontractors, subconsultants and suppliers upon which the contract or concession agreement was awarded are maintained over the term or duration of the contract or concession agreement. (c) For any defined selection pool contract or concession agreement, it shall be an ongoing, affirmative obligation of the contractor, consultant or concessionaire on such contract or concession agreement to maintain, at a minimum, compliance with such defined selection pool requirements and with the minimum utilization, if applicable, of SBE, SBEC, or EBE subcontractors, subconsultants and suppliers upon which the contract or concession agreement was awarded, for the duration of the contract or concession agreement, unless the city initiates a material alteration to the scope of work affecting SBE, SBEC, or EBE performance of a commercially useful function on the contract or concession agreement through change order, contract or concession agreement amendment, force account or as otherwise described in section 28-223. SBE, SBEC, or EBE performance of such material alteration of the contract or concession agreement scope shall be documented in writing to the director by the SBE, SBEC, or EBE. (d) The DSBO shall evaluate the performance of the SBE, SBEC, or EBE contractor, consultant or concessionaire to determine whether such contractor, consultant or concessionaire, and any utilized SBE, SBEC, or EBE subcontractor, subconsultant or supplier, is performing a commercially useful function on the contract or concession agreement. The evaluation shall examine the amount of work subcontracted, industry practice and other relevant factors. The amount of SBE, SBEC or EBE participation credited toward defined selection pool requirements and minimum SBE, SBEC, or EBE utilization requirements shall be based upon an analysis of the specific duties performed by the SBE, SBEC, or EBE contractor, consultant or concessionaire, and any utilized SBE, SBEC, or EBE subcontractor, subconsultant or supplier, and the extent to which such duties constitute a commercially useful function. The director may undertake such inquiries or studies, engage such employees or retain such consultants as may be necessary to assist the director in rendering these determinations. In order for the DSBO to accurately track the amount of SBE, SBEC, or EBE participation credited toward defined selection pool requirements and minimum SBE, SBEC, or EBE utilization requirements, SBE, SBEC, or EBE contractors, consultants and concessionaires, as well as any utilized SBE, SBEC, or EBE subcontractors, subconsultants or suppliers, shall submit regularly the following information on a form prescribed by the DSBO: (1) Prime contractor information (name, address, contact person, telephone, and email address); (2) SBE, SBEC, or EBE subcontractor information (name, address, contact person, telephone, email address, and certification number); (3) Contract information and city contract control number (report for month of, contract name, date executed, original dollar amount, current dollar amount if changed, and all change orders); (4) Subcontract information (original amount, current amount if changed, scope of work, and change orders); (5) Payment received in current month; (6) Total payments received; (7) Percent of work completed; (8) Billing request rejection date and reason for rejection; and (9) Past due invoices (invoice date, reference number, number of days past due, and amount outstanding). (e) Work performed by an SBE, SBEC, or EBE contractor, consultant or concessionaire, or utilized SBE, SBEC, or EBE subcontractor, subconsultant or supplier not providing a commercially useful function, or functioning as a conduit, shall not count toward achieving ongoing defined selection pool and, if applicable, minimum SBE utilization requirements on contracts and concession agreements under this article VII. Graduation of an SBE, SBEC, or EBE shall not affect the contribution made by the SBE toward its performance under defined selection pool requirements if the work was bid or proposed to be performed by the SBE prior to the date of ineligibility for certification based on achievement of the graduation criterion. (Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)

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