Requirements for bidders, contractors, and joint ventures.
Memphis Code of Ordinances § 6-92-4
in effectSec. 6-92-4. - Requirements for bidders, contractors, and joint ventures.
A. General requirements.
1. All bidders on any construction project, or any professional services project in which the bidders subcontract with MWBEs or enter into joint ventures with MWBEs, are required to complete and submit, as a part of their bids, the following:
a. Schedule of participating certified MWBE subcontractors or joint venturers.
b. Affidavit declaring the bidder's intention to fully comply with the provisions of this chapter and all city procedures established pursuant hereto.
c. Letters of intent from subcontractors within ten days after notification of contract award.
2. Proposed changes to the designated participation of women or minority business enterprises in a bidder's bid or proposal, on any project, after submission of bids, including during performance of a contract, must be submitted to the user division and the CCO. Bidders and contractors must make a good faith effort to replace a woman or minority business enterprise subcontractor or joint venturer with another certified woman or minority business enterprise, based on said enterprises' availability. All substitutes for women or minority business enterprise subcontractors or joint venturers require prior approval by the CCO, not to be unreasonably withheld; and said approval may be granted for reasons including, but not limited to, the following:
a. Subcontractor or joint venturer requests that its subcontract or joint venture agreement with the prime contractor be voided;
b. Subcontractor or joint venturer is unable to perform the work;
c. Subcontractor or joint venturer has consistently performed unacceptable work.
3. The apparent low and best bidder on any project must submit copies of all executed subcontracts or joint venture agreements with MWBEs listed in the bid documents, within ten business days after the prime contractor receives an executed contract.
4. A bidder's failure to submit any information required by this chapter or the city's EBO program procedures may render the bid nonresponsive and ineligible for consideration.
B. Regulations on brokering services.
1. MWBEs are required to perform a commercially useful function on contracts let or made pursuant to this chapter.
2. Only expenditures to or contracts with MWBEs that perform a commercially useful function in the work of a contract may be counted towards the MWBE goal. A MWBE is considered to perform a commercially useful function when it is responsible for execution of a distinct element of the work of a contract and carrying out its responsibilities by actually performing, managing and supervising the work involved. To determine whether a MWBE is performing a commercially useful function, the city will evaluate all relevant factors such as, for example, the amount of work subcontracted and industry practices.
3. Consistent with normal industry practice, a MWBE may enter into subcontracts. If a MWBE subcontracts 50 percent or more of the work, the MWBE shall be presumed not to be performing a commercially useful function unless the MWBE holds a general contracting license and holds the prime contract with the city. The MWBE may present evidence to rebut this presumption to the city.
C. Construction projects.
1. Goal achievement.
a. Contractors are responsible for achieving participation goals, as established by the construction committee, on construction projects and maintaining said goals for the duration of the project.
b. If the prime contractor or bidder on a construction project is a certified minority or woman business enterprise, then the participation goal for the MWBE classification of said prime contractor or bidder shall be deemed met.
D. Good faith efforts. Any bidder, submitting a bid on a construction project, which does not meet participation goals established by this chapter, must provide in its bid, documentation of good faith efforts to achieve said goals. Documentation of good faith efforts will include, but not be limited to, the following:
1. Attendance at pre-bid conference, if held.
2. Copies of written notification sent to all city certified MWBEs that perform the type of work to be subcontracted, in sufficient time to allow said MWBEs to participate effectively, soliciting said MWBEs' interest in working on the project and advising the MWBEs:
a. Of the specific work the bidder intends to subcontract;
b. That their interest in the project is being solicited; and
c. How to obtain information for the review and inspection of the plans, specifications and requirements of the bid.
3. A written statement that economically feasible portions of work were selected to be performed by MWBEs, including, where appropriate, segmenting elements of work or combining elements of work into economically feasible units. The ability of the bidder to perform the work with its own work force will not in itself excuse the bidder from making good faith efforts to meet participation goals.
4. A statement of the efforts made to negotiate with MWBEs, including:
a. The names, addresses and telephone numbers of MWBEs, who were contacted;
b. The date negotiations took place;
c. A description of the information provided to MWBEs regarding the plans, specifications and requirements for portions of the work to be performed.
5. A statement of the efforts made to assist MWBEs contacted who need assistance in obtaining bonding, insurance, financing, or in reviewing the plans, specifications and requirements of the bid.
6. A statement that the bidder submitted all quotations received from MWBEs and, for those quotations not accepted, a statement of the reasons why the MWBE will not be used to work on the project; provided, that submission of the actual quotations received from MWBEs within ten business days from bid opening shall be deemed a compliance of this subsection; provided, further, that during this ten-day period no bids shall be solicited from any MWBEs for the involved project. Receipt of a lower quotation from a non-MWBE will not in itself excuse a bidder's failure to meet participation goals.
7. Outreach efforts documentation. A statement describing the bidder's outreach efforts to identify, contact, contract with, or utilize businesses, including certified MWBEs, as subcontractors or suppliers on the eligible project. The OBDC shall set forth in the solicitation document the documents that a bidder may submit to demonstrate its outreach efforts, and such documentation may include, without limitation, evidence of the following:
a. The bidder contacted the office of business diversity and compliance (OBDC) to identify available businesses to work on the eligible project, including certified MWBEs, regardless of race, gender or ethnicity. The office of business diversity and compliance (OBDC) will supply a letter to be included in the bid of the efforts rendered by the bidder as it relates to the OBDC recommendations.
b. The bidder placed notices of opportunities for qualified businesses to perform subcontracting work on the eligible project in newspapers, trade journals, and other relevant publications, including publications specifically targeted to MWBEs, or communicated such notices of opportunities via the Internet or by other available media or means.
c. The bidder submitted invitations to bid for work on the eligible project to qualified businesses, including certified MWBEs, regardless of race, gender or ethnicity.
d. The bidder included in such notices and invitations a full disclosure of the criteria upon which bids, proposals or quotes would be evaluated, and also included contact information for inquiries, submissions, or requests to review any necessary bid documents.
e. The bidder promptly responded to inquiries, provided necessary physical access and time for interested businesses to fully review all necessary bid documents, and otherwise provided information, access and time necessary to allow all interested businesses to prepare bids and quotes, regardless of race, gender or ethnicity.
f. For each business which contacted or was contacted by the bidder regarding subcontracting or other services on the eligible project, but was not contracted with or otherwise utilized on the eligible project, the bidder shall provide a written statement setting forth the dates of such contacts, the nature of such contacts, and the reasons why an agreement was not reached regarding work to be performed on the project. The bidder shall maintain all written documents reflecting such contacts, including bids, quotes and proposals.
8. As to each MWBE contacted, which the bidder considered not to be qualified, a statement of the reasons for the bidder's conclusion based on an investigation of said MWBE's capabilities. The determination of whether a bidder has made good faith effort will be made by the CCO, the director of finance and the purchasing agent, prior to the award of the project.
E. Post-award contact compliance.
1. The contractor shall submit monthly reports in such form, manner and time as required by the CCO and, in certain instances, the director of finance and/or purchasing.
2. The contractor shall notify the user division and the contract compliance office of any situations in which regularly scheduled payments are not made to MWBE subcontractors.
3. At the completion of performance on the construction project, the contractor or awardee is required to submit a final schedule of participating certified MWBE subcontractors to the user division and the contract compliance office. This document will be an affidavit denoting final contract amount and payments made to MWBE subcontractors.
F. Exceptions and waivers.
1. The CCO will waive a construction project's participation goals for a bidder when reasonable good faith efforts are shown by such bidder.
2. The CCO will waive the MWBE good faith efforts requirements of this chapter under the following circumstances:
a. Whenever the CCO finds, with the advice of the user division and purchasing agent, that any needed services or goods are available only from a single source and the prospective contractor or awardee is not currently disqualified from doing business with the city based on a failure to comply with the provisions of this chapter or city procedures established pursuant hereto; or
b. If the user division certifies in writing to the CCO that an emergency exists, and no MWBEs capable of performing the emergency work are immediately available.
G. The promotion of joint ventures.
1. The office of business diversity and compliance (OBDC) shall strongly encourage, where economically feasible, establishment of joint ventures to ensure prime contracting opportunities for all businesses, including certified MWBEs, on eligible projects.
2. Based upon the scope of work and market availability, the OBDC shall determine on a project-by-project basis on all eligible projects valued over $500,000.00 whether good faith efforts to enter into a joint venture shall be required for such project. On such projects in which good faith efforts to enter into a joint venture relationship is required, no bid shall be accepted unless submitted by a joint venture, unless the OBDC has determined that good faith efforts to enter into a joint venture have been demonstrated. The OBDC shall determine whether good faith efforts to enter into a joint venture have been adequately demonstrated based on a review of relevant facts, documents and circumstances.
3. As to each joint venture under this section, a written joint venture agreement must be completed by all parties to the joint venture and executed before a notary public, which clearly delineates the rights and responsibilities of each member or partner, complies with any requirements of the OBDC as set forth in bid documents or otherwise, and provides that the joint venture shall continue for, at a minimum, the duration of the project.
4. The OBDC shall review and approve all contractual agreements regarding the terms and provisions of each joint venture relationship prior to the award of a contract on an eligible project to the joint venture, including agreements pertaining to:
a. The initial capital investment of each venture partner;
b. The proportional allocation of profits and losses to each venture partner;
c. The sharing of the right to control the ownership and management of the joint venture;
d. Actual participation of the venture partners on the project;
e. The method of and responsibility for accounting;
f. The method by which disputes are resolved; and
g. Any additional or further information required by the OBDC as set forth in bid documents or otherwise. Joint ventures may submit agreements for pre-approval no later than seven calendar days prior to the date set for receipt of bids on an eligible project. Otherwise, agreements must be submitted on or before the date set for receipt of bids on an eligible project. A bid submitted by a joint venture that does not include a satisfactory written joint venture agreement in accordance with the requirements of this section shall be deemed non-responsive and rejected.
5. The joint venture, and each member of the joint venture, shall provide the OBDC access to review all records pertaining to joint venture agreements before and after the award of a contract in order to reasonably assess compliance with this chapter.
6. Penalties for noncompliance. Any responsible bidder who fails to comply with this section shall be subject to any or all of the penalties contained in section 6-92-6.
(Ord. No. 5662, § 1(2-328), 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_S6-92-4REBICOJOVEFetched: 10/28/2026