OPPORTUNITIES FOR SMALL BUSINESS ENTERPRISES AND EMERGING BUSINESS ENTERPRISES IN CITY CONTRACTS FOR CONSTRUCTION, RECONSTRUCTION, AND REMODELING, AND PROFESSIONAL DESIGN AND CONSTRUCTION SERVICES, AND FOR SMALL BUSINESS ENTERPRISE CONCESSIONAIRES IN CONCESSION AGREEMENTS, THROUGH DEFINED SELECTION POOL CONTRACTS AND CONCESSION AGREEMENTS
Denver Revised Municipal Code ch. 28, art. VII
in effectDenver Revised Municipal Code § 28-202 Purpose and scope.
Sec. 28-202. - Purpose and scope.
The purpose of this article VII is to enable the city, through the department of transportation and infrastructure, department of aviation, general services and other user departments, and the division of small business opportunity ("DSBO"), to undertake specific activities to promote use of small business enterprises ("SBEs"), small business enterprise concessionaires ("SBECs"), and emerging business enterprises ("EBEs"), in construction and professional design and construction services contracts and in concession agreements, in the execution by the above user departments of their duties pursuant to the Charter of the City and County of Denver. The director of the DSBO and the department heads of the user departments are expressly delegated the necessary powers and rule-making authority to effectuate the purpose of this article VII, and to undertake such additional studies or inquiries as they may deem appropriate.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 13, 8-23-21)
Denver Revised Municipal Code § 28-203 Contracts excluded from this article VII.
Sec. 28-203. - Contracts excluded from this article VII.
Contracts for which bids or proposals are sought under the minority and women business enterprise (MWBE) ordinance established pursuant to article III of this chapter 28, and its divisions, are excluded from the coverage of this article VII. In addition, in the case of a contract for which a part of the contract price is to be paid with funds from the United States Government or the State of Colorado and for which the United States Government or the State of Colorado have made applicable to such contract requirements, terms or conditions that are inconsistent with the terms of this article VII, the provisions of this article VII shall not apply to such contract to the extent of such inconsistency.
(Ord. No. 286-20, § 4, 4-13-20)
Denver Revised Municipal Code § 28-204 Definitions.
Sec. 28-204. - Definitions.
As used in this article VII, the following words and phrases shall have the following meanings, unless otherwise clearly required by the context:
(1) Affiliate means any business that is associated with an SBE, SBEC or EBE or with the owner(s) of such SBE, SBEC or EBE. Businesses are affiliates of each other when one controls or has the power to control the other, or a third party or parties' controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists. The director may utilize, in the interpretation of this definition, the definition of affiliate set forth in C.F.R. § 121 or successor regulation, as from time to time amended.
(2) Applicant business enterprise means a business enterprise seeking to be certified as a small business enterprise under this article VII.
(3) Bidder means a business enterprise that submits a bid on a construction contract that is offered for competitive bidding by the city or otherwise offered by a private owner.
(4) Broker means a business enterprise that performs a commercially useful function as an intermediary, for a fee, in the acquisition of materials, supplies or equipment, regardless of whether or not it takes title to such materials, supplies or equipment, for the city or a private owner or its contractors, consultants or suppliers, but is not a manufacturer, manufacturer's representative or regular dealer. Only bona fide commissions earned by a broker for its activities in performing a commercially useful function on a city contract shall be counted toward legitimate participation by an SBE on such contract as set out in this article VII. A packager shall be considered and treated as a broker.
(5) Business enterprise means an individual, sole proprietorship, corporation, limited liability company, partnership, limited partnership, limited liability limited partnership, joint stock company, joint venture, professional association or any other legal entity operated for profit that is properly licensed or registered, as applicable, owned, and controlled by persons who are citizens of the United States or lawful permanent residents of the United States, and otherwise authorized to do business in the State of Colorado.
(6) Certification means completion by a business enterprise of an application procedure to be developed by the DSBO, and formal authorization by the director to participate as an SBE or SBEC under this article VII. Certification neither represents nor implies that a business enterprise is qualified to perform on a contract or concession agreement, nor that it performs a commercially useful function.
(7) City means the City and County of Denver and its participating user departments.
(8) City project; city contract; city construction practices mean any contract or project encompassed within the definition of contract in this article VII, regardless of whether the project owner is the city or a private owner. All provisions of this article VII shall apply to such contracts let by private owners, provided that the city shall not dictate means and methods of construction to such private owners. Copies of all documents required to be provided by a subcontractor, subconsultant, supplier, manufacturer, manufacturer's representative or broker hereunder shall be sent to the director when the originals are sent to a private owner.
(9) Commercially useful function means an EBE, SBE, or SBEC is responsible for the execution of a distinct element of the work of a contract or concession agreement and is carrying out the work by actually performing, maintaining control, managing, and supervising the work involved, or fulfilling responsibilities as a joint venturer. In determining whether an EBE, SBE, or SBEC is performing or has performed a commercially useful function, the DSBO will analyze whether the SBE is performing functions set forth in this definition and this division including, but not limited to, being responsible for, with respect to materials, supplies or equipment used for the contract work, negotiating price, determining quantity and quality of the materials, supplies or equipment, ordering the materials, supplies or equipment, performing installation where applicable, and paying for the materials, supplies or equipment. To determine whether an EBE, SBE, or SBEC is performing a commercially useful function, the DSBO will evaluate the amount of work contracted or subcontracted, industry practices, amounts paid to the EBE, SBE, or SBEC in proportion to the work actually performed, progress toward compliance with this article, and other relevant factors. Commercially useful function is measured for purposes of determining participation on a contract or concession agreement, not for determination of certification eligibility.
(10) Competitive selection process has the meaning ascribed to that phrase in sections 2.3.(A) and 2.11.3(B) of the Denver City Charter, and in D.R.M.C. sections 5-19 and 20-56, as that meaning may pertain to a contract(s) at issue.
(11) Concessionaire or small business enterprise concessionaire or SBEC means a business enterprise that enters into a competitively selected or negotiated concession agreement with the city, in privity of contract with the city, for the operation of a retail, food service or other concession in a building, or aviation or aeronautical facility, or improvements thereto, situated on real property owned or operated by the city. A certified SBE may be included as a concessionaire or SBEC under this article VII.
(12) Concession agreement means any city agreement for the operation of a retail, food service or other concession authorized by any provision of the Charter or ordinances of the city, including, but not limited to, agreements awarded by competitive selection procedures or negotiated contracts, in a building, or aviation or aeronautical facility, or improvements thereto, situated on real property owned or operated by the city.
(13) Conduit means an EBE, SBE, or SBEC that knowingly agrees to pass the scope of work for which it is listed for participation and is scheduled to perform or supply on a contract or concession agreement, to a non-EBE, non-SBE, or non-SBEC, or does not carry out the responsibilities required by actually performing, managing, controlling and supervising the work involved. In this type of relationship, the EBE, SBE, or SBEC has not performed a commercially useful function and the arranged agreement between the two (2) parties is not consistent with standard industry practice. This arrangement does not meet the commercially useful function requirement, and therefore the EBE's, SBE's, or SBEC's participation is not considered to be a legitimate portion of the work on the contract or concession agreement. Conduit is also referred to as a passthrough.
(14) Construction means those areas of construction, reconstruction and remodeling as encompassed within the city's contracting processes authorized by the Charter and ordinances of the city. This definition shall encompass design-build contracts as appropriate.
(15) Consultant means a business enterprise that enters into a negotiated contract with the city, in privity of contract with the city, for professional design and construction services or enters into such a contract with a private owner, in privity of contract with such private owner, for such services on a building or aviation or aeronautical facility, or improvements thereto, situated on real property owned by the city.
(16) Contract means any city contract for construction or for professional design and construction services authorized by any provision of the Charter or ordinances of the city, excepting only those contracts subject to division of article III of this chapter 28, or to federal requirements or city concession contracts. Contract shall also include other contracts ancillary to cooperative agreements or understandings with other public and private agencies for purposes including the development of public facilities, park and recreational facilities, museums, zoological and other gardens, collections of natural history, and observatories, if such contracts provide for funding in whole or in part by the city and provide for utilization of such funds for the purpose of construction or professional design and construction services for any public facility or area owned or leased by the city or situated on real property owned or leased by the city. Notwithstanding the foregoing, contract shall also include construction or professional design and construction services for buildings or aviation or aeronautical facilities or improvements thereto, constructed by private owners on real property owned by the city, without regard to the utilization of city funding.
(17) Contractor means a business enterprise that enters into a competitively bid, otherwise competitively selected or negotiated construction contract with the city, in privity of contract with the city, or enters into such a construction contract with a private owner, whether or not bid, in privity of contract with such private owner for such work on a building or aviation or aeronautical facility, or improvements thereto, situated on real property owned by the city. Contractor includes general contractors and prime contractors.
(18) Day, unless otherwise indicated, means calendar day.
(19) Defined selection pool contract or concession agreement means a contract or concession agreement which is determined by the director to be appropriate for restriction of the selection of the contractor, consultant or concessionaire and, as applicable, subcontractors, subconsultants and suppliers on such contract or concession agreement to the pool of certified SBEs, SBECs, or EBEs, as determined by the director.
(20) Department head means the manager or director of the city department entering into contract(s) or concession agreement(s) with SBE(s) or SBECs, or such person's designee.
(21) Design-build contract means a contract for the procurement of both the design and the construction, reconstruction or remodeling of a public work in a single contract with a single design-build contractor or combination of such contractors that are capable of providing the necessary design and construction, reconstruction or remodeling services.
(22) Director means the director of the division of small business opportunity or successor agency, or such director's designee.
(23) DSBO or the DSBO means the division of small business opportunity.
(24) DSBO required forms means the certifications, letters of intent, commitment forms and other forms and documents developed by the DSBO or described in this article VII and the rules and regulations, referenced in the applicable procurement documents, and required by the DSBO to confirm and evaluate a bidder's or proposer's commitment to utilization of certified firms and other DSBO program requirements. No authorized alteration or modification of a DSBO required form is permitted. The DSBO reserves the right to reject altered or modified forms.
(25) Emerging business enterprise or EBE means a business enterprise that is certified by the director under this article VII as meeting all of the requirements for certification set forth in sections 28-205 and 28-206.
(26) Expertise means demonstrated skills, knowledge or ability to perform in the field of endeavor in which certification is sought by the business enterprise as defined by normal industry practices, including licensure or registration where required.
(27) Joint venture means an association of two (2) or more business enterprises to constitute a single business enterprise to perform a city construction or professional design or construction services contract, or concession agreement for which purpose they combine their property, capital, efforts, skills and knowledge and in which venture each joint venturer is responsible for a distinct, clearly defined portion of the work of the contract or concession agreement, performs a commercially useful function, and whose share in the capital contribution, control, management responsibilities, risks and profits of the joint venture are equal to its ownership interest. Joint ventures must have an agreement in writing specifying the terms and conditions of the relationships between the joint venturers and their relationship and responsibility to the contract or concession agreement.
(28) Manufacturer means a business enterprise that operates or maintains a factory or establishment that produces, or substantially alters on the premises the materials, supplies or equipment provided to contractors, consultants, subcontractors, subconsultants, suppliers, brokers or manufacturer's representatives on a contract, required under the contract and of the general character described by the contract specifications. For manufacturers, one hundred (100) percent of the value the materials, supplies or equipment provided by an SBE or EBE under a contract shall count toward SBE participation.
(29) Manufacturer's representative means a business enterprise that sells products for one (1) or more manufacturers. A manufacturer's representative does not take legal title to or physical possession of the products that it sells, such products generally being sent directly from the manufacturer to the contractor or subcontractor purchasing such products. Only bona fide commissions earned by a manufacturer's representative in performing a commercially useful function on a contract shall be counted toward legitimate participation by an SBE or EBE on such contract as set out in this article VII.
(30) Packager means a business enterprise that performs a commercially useful function in the packaging of goods for the city or a private owner or its contractors, consultants, manufacturers, manufacturer's representatives or suppliers but is not itself a regular dealer or a manufacturer or manufacturer's representative. A packager shall be considered as, and treated as, a broker. A packager shall be considered and treated as a broker.
(31) Personal net worth means the net value of the assets of an individual after total liabilities are deducted. An individual's personal net worth does not include the individual's ownership interest in an applicant business enterprise or participating EBE, SBE, or SBEC or the individual's equity, if any, in his or her primary place of residence. An individual's personal net worth includes only his or her share of assets held individually and jointly with the individual's spouse. For the purposes of certification as an SBE, SBEC, or an EBE under this article VII, an individual must have a personal net worth equal to or less than the permissible personal net worth amount determined by the U.S. Department of Transportation to be applicable to its DBE programs, or as otherwise promulgated by the director by rule and regulation.
(32) Private owner means a private or other non-city owner undertaking to contract for construction work or for professional design and construction services on buildings or aviation or aeronautical facilities or improvements thereto, on real property owned by the city.
(33) Professional design and construction services means those areas of services ancillary to construction as encompassed within the city's contracting processes authorized by the Charter and ordinances of the city, including engineering, architectural, testing, construction management services and planning services related to a construction project.
(34) Proposal means an offer to perform construction or professional design and construction services or to operate a concession pursuant to a negotiated or otherwise competitively selected city contract or concession agreement with either the city or a private owner, and whether in response to a request for qualifications, request for proposals or otherwise. The department head shall designate the proposal, and the date of receipt for each solicitation of proposers subject to this article VII.
(35) Proposer means a business enterprise that submits a proposal on a city construction contract or professional services, including design and construction services contract, or for a concession agreement, that is negotiated and not competitively bid or that utilizes a competitive selection process.
(36) Regular dealer means a business enterprise that owns, operates or maintains a store, warehouse or other establishment in which the materials, supplies, articles or equipment of the general character described by the contract specifications and required for the performance of the contract are bought and regularly sold or leased to the public in the usual course of business. To be a regular dealer, the business enterprise must be an established, regular business engaged in, as a substantial and material portion of its business, and in its own name, the purchase and sale or lease of the products in question. A regular dealer is presumed to keep such materials, supplies, articles or equipment in stock, but must in any event bear the risk of loss of such items. A regular dealer in such bulk items as steel, cement, gravel, stone, asphalt and petroleum products need not own, operate or maintain a place of business if it both owns and operates distribution equipment for the products. Any supplementation of a regular dealer's distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. For regular dealers, sixty (60) percent of the value of the commercially useful function performed by the SBE shall be counted toward the participation goal. Brokers, conduits, packagers, manufacturers and manufacturer's representatives shall not be regarded as regular dealers within the meaning of this term.
(37) Small business enterprise or SBE means a business enterprise, including an SBEC, that is certified by the director under this article VII as meeting all of the requirements for certification set forth in sections 28-205 and 28-206.
(38) Subcontractor or subconsultant means a business enterprise that either directly contracts with a contractor or consultant or directly contracts with subcontractors or subconsultants under such contractor or consultant on a city contract or concession agreement, and which business enterprise will provide services or perform work under agreements with the contractor or consultant or with other subcontractors or subconsultants under such contractor or consultant.
(39) Supplier means a business enterprise that either directly contracts with a contractor or consultant or directly contracts with subcontractors or subconsultants under such contractor or consultant on a city contract, and which business enterprise will provide materials, supplies or equipment under agreements with the contractor or consultant, or with other subcontractors or subconsultants under such contractor or consultant. A supplier may be a regular dealer, manufacturer, manufacturer's representative or broker. Participation goal shall be counted in accordance with the function performed by the SBE supplier under a contract and determined on a per-contract or per-project basis.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 14, 8-23-21)
Denver Revised Municipal Code § 28-205 SBE, SBEC, and EBE certification; eligibility of applicant business enterprises.
Sec. 28-205. - SBE, SBEC, and EBE certification; eligibility of applicant business enterprises.
(a) Procedures and methods. The director shall, by rule and regulation or informal guidelines relating solely to internal management and procedure, establish reasonable procedures and methods for the certification of applicant business enterprises as SBEs, SBECs, and EBEs in order to effectuate the purposes of this article VII. The director may seek input and advice from appropriate industry sources as to appropriate aspects of work performance, equipment and staffing in these industry areas in which certification is being sought.
(b) Only applicant business enterprises that meet the criteria for certification as an SBE, SBEC, and EBE may participate in the program established under this article VII. The SBEs, SBECs, and EBEs applicant business enterprise has the burden of persuasion by a preponderance of the evidence. SBEs, SBECs, and EBEs shall be certified only for the certification area(s) for which they apply and in which they have had sustained business activity for a minimum of six (6) months. Certification areas shall correspond to the codes set forth in North American Industrial Classification Standard (NAICS) Codes, or successor classification system, Code of Federal Regulations § 121.201, as amended, or successor regulation.
(c) To determine whether the requirements set forth below are met, the division must consider all of the facts in the record, viewed as a whole.
(1) Ownership. In order for the owner(s) to be found to own the applicant business enterprise for purposes of certification, as applicable, the applicant business enterprise or owner(s) must meet the requirements set forth below.
a. Own in his or her own name the legal and equitable interest in the applicant business enterprise;
b. Have acquired the interest in a verifiable and substantial arms-length transaction utilizing verifiable, substantial, and continuing consideration, going beyond pro forma ownership of the applicant business enterprise as reflected in ownership documents;
c. Enjoy customary incidents of ownership and share in the risks and profits commensurate with his or her ownership interest in practice, not merely in the form of arrangements; and
d. Have acquired the interest with a contribution of his or her own capital resources, by having put his or her own financial resources at risk in the operation of the applicant business enterprise, or subject to requirements below, with a contribution of expertise. All contributions by the owner(s) to acquire the ownership interest in the applicant business enterprise must be verifiable, substantial, and continuing, which in part, means that it be commensurate with the ownership interest acquired.
(A) If expertise is relied upon as part of an owner's contribution to acquire ownership, the expertise must be of the requisite quality generally recognized in a specialized field, in areas critical to the operations of the applicant business enterprise, indispensable to the applicant business enterprise's potential success, specific to the type of work the applicant business enterprise performs and documented in the applicant business enterprise's records. These records must clearly show the contribution of expertise, including its equivalent monetary value. The individual(s) whose expertise is relied upon must have a commensurate capital investment in the applicant business enterprise.
(2) Management and control. The owner(s) shall manage and control the daily business operations of the applicant business enterprise. The owner(s) management and control must be verifiable, substantial, and continuing and go beyond the pro forma ownership of the applicant business enterprise as reflected in its ownership documents. Ownership alone is not sufficient to establish management and control. To determine whether the owner(s) satisfy these requirements, the DSBO shall consider the criteria below.
(3) Management and control. The owner(s) shall manage and control the daily business operations of the applicant business enterprise. The owner's(s') management and control must be real, substantial, and continuing and go beyond the pro forma ownership of the applicant business enterprise as reflected in its ownership documents. Ownership alone is not sufficient to establish management and control. To determine whether the owner(s) satisfy these requirements, the DSBO shall consider the criteria below.
a. If federal or state law or city ordinance requires the owner(s) to have a particular license or other credential to own or control a certain type of business enterprise, then the owner(s) must possess the required license or other credential. If federal or state law or city ordinance does not require that the owner possess the license or other credential to own or control the business enterprise, including control, direction, or supervision of the work performed under the license, to determine whether the owner(s) manage and control the business enterprise, the DSBO may consider whether the owner(s) holds the license or other credential as a factor. If there is not a legal requirement for the owner to hold the license or other credential to own or control a certain type of business enterprise, failure of the owner to hold the license or other credential does not by itself indicate lack of management and control of a business enterprise without other factors indicating to the contrary.
b. An owner(s) shall have substantial experience in the trade or industry that would be necessary to make routine and major decisions for the applicant business enterprise.
c. An owner(s) shall regularly make decisions, hold himself or herself out to the public, and sign important documents and financial instruments in a manner that is indicative of primary management and control of daily business operations and responsibility for routine and major decisions.
d. There may not be any restriction through corporate charter provisions, by law provisions, contracts or any other formal or informal devices that prevent the owner(s), without the cooperation or vote of any other individual, from making any business decision of the applicant business enterprise, including the making of obligations or the dispersing of funds.
e. The owner(s) must possess the power to direct or cause the direction of the management and policies of the applicant business enterprise and to make day-to-day as well as long-term decisions on management, policy, and operations.
f. The owner(s) may delegate various areas of the management, policymaking, or daily operations of the applicant business enterprise to another participant or other participant(s) who are not owner(s). Such delegations of authority must be revocable, and the owner(s) must retain the power to hire and fire any such person. The owner(s) must actually exercise control over the applicant business enterprise's operations, management, and policies.
g. The owner(s) must have an overall understanding of, and managerial and technical competence, experience and expertise, directly related to the type of business in which the applicant business enterprise is engaged and its operations. The owner(s) is not required to have experience or expertise in every critical area of the applicant business enterprise's operations or have greater experience or expertise in a given field than managers or key employees. The owner(s) must have the ability to intelligently and critically evaluate information presented by other participants in the applicant business enterprise's activities and to make independent decisions concerning the applicant business enterprise's daily operations, management, and policymaking. Generally, expertise or responsibilities primarily in office management, administration, bookkeeping, or other functions unrelated to the principal business activities of the applicant business enterprise are insufficient to demonstrate management and control.
h. An owner(s) may not engage in outside employment or other business interests that conflict with the management of the applicant business enterprise or prevent the owner(s) from devoting sufficient time and attention to the affairs of the applicant business enterprise to manage and control its day to day activities. For example, absentee ownership of a business and part-time work in a full-time applicant business enterprise are not viewed as constituting management and control. An individual, however, could be viewed as controlling a part-time business that operates only evenings or weekends or both, provided the individual manages and controls it throughout all hours of operation.
(4) Independence. Only an independent applicant business enterprise may be certified as an SBE, SBEC or an EBE. An independent applicant business enterprise is one whose viability does not depend on its relationship with another business enterprise. Recognition of an applicant business enterprise as a separate entity for tax or corporate purposes is not necessarily sufficient to demonstrate that the applicant business enterprise is independent and not an affiliate. In determining whether an applicant business enterprise is an independent business, the director shall:
a. Examine whether there is actual or potential affiliation between the applicant business enterprise and individuals or non-certified business enterprises. To determine whether affiliation exists, the division considers factors such as ownership, management, previous relationships with or ties to another individual or non-certified business entity, and contractual relationships. Affiliation may be based on common management, identity of interest, newly organized concern rule, joint venture, or any combination thereof.
b. Scrutinize relationships with non-certified business enterprises in areas of personnel, finance, facilities, equipment, and other resources. The division may consider shared employees (including administrative staff), office space, phone numbers, and equipment and whether there is any support or sharing of bonding capacity, lines of credit, and other resources.
c. Consider present or recent employer/employee relationships between the owner(s) of the applicant and non-owner individuals, non-certified business enterprises, and persons associated with non-certified business enterprises.
d. Examine the applicant business enterprise's relationships with non-certified business enterprises to determine whether there is a pattern of exclusive or primary dealings with non-certified business enterprises.
e. Consider whether relationships between the applicant business enterprise and other non-certified persons and business enterprises is consistent with normal industry practice.
(5) Other ownership criteria. The director may establish by rule and regulation other appropriate criteria of ownership, including, but not limited to, conditions of personal net worth of SBEs owners, other than those certified solely as concessionaires. Personal net worth shall be the amount of personal net worth described in subsection 28-204(31).
(6) Actively in business for six (6) months. The applicant business enterprise may not be certified until six (6) months after the satisfaction of each of the following:
a. Formation of the applicant business enterprise;
b. Commencement of sustained business activity in the trade or profession described on the certification application; and
c. Commencement of ownership, management and control of daily business operations by the identified owner(s).
(7) Lawfully present in the United States. The owner(s) must be a citizen of the United States or a lawfully admitted permanent resident of the United States, and must not have the status of an unauthorized worker or otherwise be disqualified from lawfully residing in the United States, engaging in business and seeking this certification. As a condition of certification, owner(s) must comply with all reporting, submittal and other requirements that may be imposed by the city, State of Colorado or United States governments regarding such lawful presence.
(8) Threshold size; continued eligibility and renewal of certification. No applicant business enterprise or SBE or EBE shall be eligible for initial or subsequent renewal of certification if such applicant business enterprise or SBE or EBE combined with any affiliates meets the criteria set forth in section 28-206 for graduation from this article VII. An SBE, SBEC or an EBE will be certified for a three-year period. Following initial certification, an SBE, SBEC or an EBE that desires to continue its certification shall, no later than thirty (30) days prior to each three-year anniversary of the certification, submit a certification renewal application that shall update and reaffirm all requirements for certification. No later than thirty (30) days prior to each annual anniversary of the certification, an SBE, SBEC or an EBE shall submit an affidavit certifying that there has been no change in any information affecting certification eligibility, and other required tax or other financial information and documents. A certification may be terminated by the director upon the failure of the SBE, SBEC or an EBE to satisfy any certification requirement set forth in this article VII.
(9) City officials, officers and employees ineligible. No applicant business enterprise shall be eligible to be certified as an EBE, SBE, SBEC if ownership or control of such business enterprise is held by a current official, officer or employee of the city.
(10) Interviews, investigation and onsite visits. The DSBO shall personally interview all persons upon whom eligibility for certification is based, and is empowered to interview such other persons and conduct such onsite visits and investigations as may be appropriate in its sole discretion to verify eligibility for certification. An applicant business enterprise wishing to be certified as an SBE, SBEC or an EBE shall cooperate with the DSBO in supplying additional information that may be requested in order to make a determination.
(d) An applicant business enterprise shall be certified only for specific types of work in which the owner(s) has the ability and expertise to manage and control the applicant business enterprise's operations and work.
(e) In lieu of conducting its own certifications, the DSBO may accept formal certifications by other governmental entities as meeting the requirements of this article VII provided that the director determines that the certification standards and safeguards of such entities are substantially equivalent to those of the city.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 15, 8-23-21)
Denver Revised Municipal Code § 28-206 SBE, SBEC, and EBE certification and graduation size standards; renewal of certification; decertification; graduation.
Sec. 28-206. - SBE, SBEC, and EBE certification and graduation size standards; renewal of certification; decertification; graduation.
(a) The DSBO is authorized to establish the size standards for the certification of business enterprises as further provided in the applicable rules and regulations and in accordance with articles of III, V and VII of this chapter 28. No applicant business enterprise shall be certified as an SBE, SBEC or EBE, and following certification of an SBE, SBEC or EBE, no certification shall be renewed if on the effective date of the application or renewal the applicant business enterprise, SBE, SBEC or EBE (combined with all affiliates) has achieved a size standard established by the DSBO:
(b) If an SBE, SBEC, or EBE has been certified by the city in more than one (1) NAICS Code or has an affiliate that has been certified by the city in a NAICS Code other than that of the SBE, SBEC or EBE, then the annual receipt level or employee or other criterion used as the graduation criterion for such SBE, SBEC, or EBE shall apply separately to each NAICS Code for which the SBE or EBE and its affiliate have been certified. Such an SBE, SBEC, or EBE and any affiliate that has exceeded the graduation criteria in one (1) NAICS Code shall be deemed to be graduated from this article VII as to that Code, and if the graduation requirements of subsection (a) above do not apply, may continue to be certified in another NAICS Code having a higher monetary or employee number graduation level but shall no longer be considered eligible to be or remain certified in the NAICS Code with the lower size standard. Such an SBE, SBEC, or EBE, or any affiliate thereof that has exceeded the graduation criteria for the largest NAICS Code applicable to its activities shall be deemed to be graduated from this article VII criteria. Graduated SBEs, SBECs, or EBEs may reapply for certification if they meet the criteria for certification. Utilization of SBE or SBEC contractors, consultants and concessionaires shall be counted under defined selection pool contracts to the extent that an SBE is performing a commercially useful function corresponding to a NAICS Code in which it is certified.
(c) Application to affiliates. The graduation criteria set forth above shall be deemed to apply to the owner(s) upon whom eligibility for certification is based and all affiliates of such owner(s). No applicant business enterprise shall be certified based upon one (1) or more owner(s) who owned or who was an affiliate of an SBE, SBEC, or EBE that has become ineligible for renewal of certification because of the achievement of graduation criteria.
(d) The certification status of all SBEs, SBECs, or EBEs shall be reviewed periodically by the DSBO. Failure of a certified and eligible SBE, SBEC, or EBE to seek timely renewal of certification by filing the necessary documentation with the DSBO may result in decertification.
(e) The DSBO shall decertify an SBE, SBEC, or EBE that does not continuously meet the eligibility criteria for certification.
(1) The SBE shall notify the DSBO of any change in its circumstances affecting its continued eligibility for certification under this article VII within thirty (30) days of the SBE's, SBEC's or EBE's actual awareness of such change of circumstances. Failure to do so may result in the SBE's, SBEC's, or EBE's decertification.
(2) The director may move to decertify an SBE, SBEC, or EBE that repeatedly fails to submit bids or proposals on city contracts, attend relevant pre-bid or pre-proposal conferences, or otherwise comply with the requirements of this article VII.
(f) An applicant business enterprise or SBE, SBEC, or EBE that has been denied certification or renewal of certification or decertified may protest the denial of certification or decertification by the procedure set out in section 28-69. An applicant business enterprise or SBE, SBEC, or EBE found to be ineligible for certification or renewal of certification may not apply for certification or recertification for one (1) year after the effective date of the final decision.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 16, 8-23-21)
Denver Revised Municipal Code § 28-207 Identification of defined selection pool contracts and concession agreements; determination of defined selection pool requirements.
Sec. 28-207. - Identification of defined selection pool contracts and concession agreements; determination of defined selection pool requirements.
The director, in collaboration with the department heads, may on the basis of contract or concession agreement categories, types, size standards or other consistent criteria for selection, identify and determine those contracts and concession agreements proposed to be restricted by the director for award to SBEs, SBECs, or EBEs under this article VII. The stated selection criteria may differ among agencies of the city. Certification as an SBE, SBEC, or EBE shall thereupon be established as a condition of responsiveness to a bid or proposal on such selected contracts and concession agreements. Such selected contracts and concession agreements, referred to as defined selection pool contracts and concession agreements, shall be awarded only to responsive low-bidder SBE, SBEC, or EBE (as applicable) bidders on bid contracts and to responsive SBE, SBEC, or EBE proposers (as applicable) on non-bid contracts and concession agreements. Such bidders and proposers may also function as brokers, joint venturers, manufacturers, manufacturer's representatives, packagers, regular dealers or suppliers, to the extent consistent with the definitions of those terms contained in section 28-204, so long as the SBE, SBEC, or EBE bidder or proposer, also performs a commercially useful function as a contractor, consultant, or concessionaire, as applicable, on the contract or concession agreement, and does not function as a conduit.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 17, 8-23-21)
Denver Revised Municipal Code § 28-208 Contracts for construction, reconstruction and remodeling—Defined selection pool contracts—Compliance with defined selection pool requirements.
Sec. 28-208. - Contracts for construction, reconstruction and remodeling—Defined selection pool contracts—Compliance with defined selection pool requirements.
(a) The bid or competitive selection process specifications for each defined selection pool construction contract shall require that all bidders or proposers seeking to contract with the city or a private owner on such project shall address the project defined selection pool requirements through one (1) or both of the following subsections:
(1) The value of the commercially useful function to be self-performed by the SBE or EBE bidder or proposer shall count to the extent provided in section 28-212 toward satisfaction of the SBE or EBE defined selection pool performance requirements; or
(2) If the bidder or proposer submits a joint venture agreement that includes one (1) or more SBEs or EBEs, the value of the commercially useful function to be performed by the SBE or EBE in the joint venture shall count to the extent provided in section 28-212 toward satisfaction of the SBE or EBE defined selection pool requirements. The joint venture is subject to the review and approval by the director and the joint venture agreement shall be provided to the director within a time period before the date of bid opening or the date of proposal in the case of a competitive selection process defined by the director. Joint venturer participation will count toward the satisfaction of the SBE or EBE defined selection pool requirements upon confirmation by the director of the utilization in the joint venture of joint management and full integration of work forces by the joint venturers.
(b) Notwithstanding any other provision of this article VII, if a department head finds, with respect to a particular contract, that the best interests of the city would be served by the negotiation of a contract, including, but not limited to, a design-build or construction manager-general contractor contract, through a competitive selection process based wholly on quality, without reference to selection by low bid of the contractor or its subcontractors or suppliers, the analysis of the SBE or EBE defined selection pool requirements by such contractor shall be determined on the basis set out in sections 28-214 through 28-218, provided that, in the event of such an analysis, all references in those sections to consultant shall also be deemed to refer to contractor.
(c) Graduation of an SBE, SBEC, or EBE shall not affect the contribution made by the SBE, SBEC, or EBE toward its performance under defined selection pool requirements if the work was bid or proposed to be performed by the SBE, SBEC, or EBE prior to the date of ineligibility for certification based on achievement of the graduation criteria.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 18, 8-23-21)
Denver Revised Municipal Code § 28-209 Contracts for construction, reconstruction and remodeling—Defined selection pool contracts—SBE subcontractor and supplier minimum utilization requirements.
Sec. 28-209. - Contracts for construction, reconstruction and remodeling—Defined selection pool contracts—SBE subcontractor and supplier minimum utilization requirements.
(a) In addition to determining that a contract should be subject to the defined selection pool requirements set out in section 28-207, the director may, in collaboration with the department heads, also add a requirement to the bid or competitive selection process instructions for each defined selection pool construction contract assigning a minimum utilization requirement on such contract for SBE utilization as subcontractors or suppliers, based upon a percentage of the dollar value of all work on such contract; provided that, if the director determines it to be in the best interests of the city, the director may in consultation with the user department waive the application of minimum SBE subcontractor or supplier utilization for a given contract. The minimum utilization requirement assigned by the director to each such contract may vary from contract to contract consistent with the availability of SBEs with respect to such contract. Such minimum utilization requirement, if established, is not a goal, but a mandatory requirement of the contract. The DSBO shall establish a methodology for the establishment of minimum utilization requirements through rules and regulations. Such methodology shall consider the reasonably known availability of SBEs in specific industry groupings that are associated with individual projects.
(b) The following factors shall count toward SBE utilization requirements as more specifically provided below: portions of work undertaken by SBEs as subcontractors, suppliers, manufacturers, manufacturer's representatives or brokers.
(Ord. No. 286-20, § 4, 4-13-20)
Denver Revised Municipal Code § 28-210 [Reserved].
Denver Revised Municipal Code § 28-211 Defined selection pool contracts for construction, reconstruction and remodeling—Compliance with SBE minimum utilization.
Sec. 28-211. - Defined selection pool contracts for construction, reconstruction and remodeling—Compliance with SBE minimum utilization.
(a) The bid or competitive selection process specifications for each defined selection pool construction contract shall require that all bidders or proposers seeking to contract with the city on such project shall address any project SBE minimum utilization requirements as follows. If the bidder or proposer utilizes SBEs as subcontractors, suppliers, manufacturers, manufacturer's representatives or brokers, the value of the commercially useful function to be performed by such SBEs, including the cost of supplies and materials obtained by the SBE for the work of the contract, and supplies purchased or equipment leased by the SBE, except supplies and equipment the SBE purchases or leases from the bidder or proposer or its affiliate, shall count to the extent provided in section 28-212 toward satisfaction of the SBE minimum utilization requirements.
(b) In order for its bid or proposal to be deemed responsive, a bidder or proposer must meet the minimum utilization requirements for SBEs on a particular contract as well as the bidder's or proposer's self-performance or joint venture obligations set out in section 28-208 above. Graduation of an SBE, SBEC, or EBE shall not affect the contribution made by the SBE, SBEC or EBE toward its performance under defined selection pool requirements if the work was bid or proposed to be performed by the SBE, SBEC or EBE prior to the date of ineligibility for certification based on achievement of the graduation criterion.
(c) For contracts selected in accordance with sections 2.3.3(A) and 2.11.3(B) of the Denver City Charter, and D.R.M.C. Sections 5-19 and 20-56, including on call construction contracts, the department head may determine to address the minimum utilization requirements by means of a small business utilization plan for utilization of SBEs on such contract. In that event, the department head shall request the director to approve the utilization of such a utilization plan, consistent with the scope and intent of this article VII. The development, scope and utilization of such utilization plans shall be addressed in rules and regulations promulgated by the director.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 19, 8-23-21)
Denver Revised Municipal Code § 28-212 Defined selection pool contracts for construction, reconstruction and remodeling—Identification of work scope of performing SBE and of other participating SBEs.
Sec. 28-212. - Defined selection pool contracts for construction, reconstruction and remodeling—Identification of work scope of performing SBE and of other participating SBEs.
(a) At the time of bid opening, or date of proposal in the case of a competitive selection process, the bidder or proposer shall provide to the city or private owner a list of all SBEs that are being utilized on the contract whether as a self-performing bidder or proposer or as subcontractors, suppliers, manufacturers, manufacturer's representatives, brokers or members of a joint venture. The list shall specify:
(1) The name and contact name for each SBE;
(2) The dollar value and description of the commercially useful function to be performed by the SBE, consistent with subsections (c) and (d). In the case of utilization of a supplier, manufacturer, manufacturer's representative, or broker, the appropriate percentage of dollar value attributable to such SBE as a commercially useful function shall be calculated with all underlying data supplied;
(3) The percentage of the value of the commercially useful function to be performed by the SBE, consistent with subsections (c) and (d), as compared to the total contract amount;
(4) An adequate statement from the bidder or proposer that the dollar amount of work to be performed by such SBE on the contract, other than that self-performed by the bidder or proposer, was furnished to the bidder or proposer and agreed upon prior to bid opening or date of proposal in the case of a competitive selection process; and
(5) An adequate statement from the bidder or proposer that it understands that a letter of intent, including, but not limited to, values provided by self-performing bidders or proposers, joint venturers, subcontractors, suppliers, manufacturers, manufacturer's representatives and brokers, expressed in dollar values and as a percentage of the overall work, must be submitted to the user department or director for each SBE listed, including a self-performing bidder or proposer, at the time bids are opened by the city or by the date of proposal in the case of a competitive selection process, or bid selection made by a private owner.
(b) Only that level of SBE utilization demonstrated in accordance with this section at the time of such bid opening, date of proposal in the case of a competitive selection process or private selection may be counted in satisfaction of the requirements of this article VII. Bidders or proposers must submit an executed letter of intent for each SBE listed by the bidder or proposer, including a self-performing bidder or proposer, at the time bids are opened, proposals are received, in the case of a competitive selection process, or bid selection is made. Failure to do so will render the bid or proposal nonresponsive.
(c) All SBE contractors, subcontractors, joint venturers, suppliers, manufacturers, manufacturer's representatives or brokers listed in a bid or proposal must actually perform a commercially useful function in the work of a contract within the area(s) for which they are certified, and must not function as a conduit. Consistent with industry or professional practice, and as permitted by rules and regulations adopted by the director, SBEs may enter into subcontracts, including subcontracts with non-SBEs. In no case, however, shall an SBE act as a conduit, nor shall the participation of an SBE count toward satisfaction of the requirements of this article VII to the extent it fails to perform a commercially useful function.
(d) All expenditures for materials, supplies and equipment obtained from an SBE manufacturer, manufacturer's representative or supplier shall count toward SBE self-performance or utilization as specified in subsection 28-204(39). Expenditures for materials, supplies and equipment paid to SBEs that are not manufacturers, manufacturer's representatives or suppliers may count toward compliance with the requirements of this article VII only to the extent of fees or commissions charged for providing a bona fide service, such as professional, technical, consultant or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials or supplies required for performance of the contract, provided that the fee or commission is determined by the director to be reasonable and not excessive as compared with fees customarily allowed for similar services.
(e) Any agreement between a bidder or proposer and an SBE in which the bidder or proposer requires that the SBE not provide subcontracting quotations to other bidders or proposers is prohibited and shall render a bidder's bid or proposer's proposal nonresponsive.
(Ord. No. 286-20, § 4, 4-13-20)
Denver Revised Municipal Code § 28-213 Defined selection pool contracts for construction, reconstruction and remodeling—Responsive and nonresponsive bids or proposals.
Sec. 28-213. - Defined selection pool contracts for construction, reconstruction and remodeling—Responsive and nonresponsive bids or proposals.
(a) Responsive; compliance with requirements. If the low monetary bid or competitive selection process proposal subject to the defined selection pool requirements indicates that the SBE or EBE bidder or proposer is appropriately performing a commercially useful function on the contract, and is otherwise responsive to the requirements of the contract and this article VII, then the director shall notify the department head to regard the bid or proposal as responsive to this article VII.
(b) Failure to meet requirements. If a bid or proposal subject to the defined selection pool requirements does not demonstrate performance by the SBE or EBE bidder or proposer of a commercially useful function, as set out in section 28-208, minimum utilization of SBE subcontractors or suppliers as set out in section 28-211 or provide timely information as set out in section 28-212, then the director shall notify the department head to regard the bid or proposal as nonresponsive, and such determination shall result in no further consideration by the city or private owner of the bid or proposal.
(c) Commercially useful function or minimum utilization of SBE subcontractors—Informal meeting. In the event the director finds inadequacies in a bidder or proposer's demonstration of commercially useful function under section 28-208 or minimum utilization of SBE subcontractors or suppliers under section 28-211, the director will provide written notice of such inadequacies to the bidder or proposer prior to notifying the appropriate department head of bid or proposal responsiveness. Within two (2) business days from the date that the city notifies the bidder or proposer of such inadequacies, the bidder or proposer may request an informal meeting with the director. Such informal meeting shall be scheduled by the director. All deficiencies shall be explained to the bidder or proposer at such informal meeting. Within twenty-four (24) hours after the informal meeting, the bidder or proposer shall be allowed to submit additional information or to clarify its performance of a commercially useful function. At no time, however, will the director count toward the minimum utilization the addition of subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives, or brokers that may later be added to the contract or to the original SBE participation submitted at either the time of the bid or the date of proposal, in the case of a competitive selection process. After this informal meeting, the director will:
(1) Determine whether the bid or proposal will be responsive or nonresponsive;
(2) Make the notification as stated in subsection (b) above, as applicable; and
(3) Provide written notice to the bidder or proposer of the director's final determination.
(Ord. No. 286-20, § 4, 4-13-20)
Denver Revised Municipal Code § 28-214 Contracts for professional design and construction services and concession agreements—Compliance with defined selection pool requirements.
Sec. 28-214. - Contracts for professional design and construction services and concession agreements—Compliance with defined selection pool requirements.
The proposal specifications for each defined selection pool professional design and construction services contract and concession agreement shall require that all proposers seeking to contract with the city or a private owner on such contract or concession agreement shall address the SBE, SBEC or EBE defined selection pool requirements through one (1) or both of the following subsections:
(1) The value of the commercially useful function to be self-performed by the SBE, SBEC or EBE (as applicable) proposer shall count to the extent provided in section 28-218 toward satisfaction of the SBE, SBEC or EBE defined selection pool requirements; or
(2) If the proposer submits a joint venture agreement that includes one (1) or more SBEs, SBECs or EBEs, the value of the commercially useful function to be performed by the SBEs, SBECs or EBEs (as applicable) in the joint venture shall count to the extent provided in section 28-218 toward satisfaction of the SBE, SBEC or EBE defined selection pool requirements. The joint venture is subject to the review and approval by the director and the joint venture agreement shall be provided to the director within a time period before the date of proposal defined by the director. Joint venturer participation will count toward the satisfaction of the SBE, SBEC or EBE defined selection pool requirements upon confirmation by the director of the utilization in the joint venture of joint management and full integration of work forces by the joint venturers. Graduation of an SBE, SBEC, or EBE shall not affect the contribution made by the SBE, SBEC or EBE toward its performance under defined selection pool requirements if the work was bid or proposed to be performed by the SBE, SBEC or EBE prior to the date of ineligibility for certification based on achievement of the graduation criteria.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-215 Contracts for professional design and construction services and concession agreements—SBE or EBE subconsultant and supplier minimum utilization requirements.
Sec. 28-215. - Contracts for professional design and construction services and concession agreements—SBE or EBE subconsultant and supplier minimum utilization requirements.
(a) In addition to determining that a contract should be subject to the defined selection pool requirements set out in section 28-214, the director may, in collaboration with the department heads, also add a requirement to the proposal instructions for each defined selection pool professional design and construction services contract assigning a minimum utilization requirement on such contract for SBE or EBE utilization as subconsultants and/or suppliers, based upon a percentage of the dollar value of all work on such contract; provided that, if the director determines it to be in the best interests of the city, the director may in consultation with the user department waive the application of minimum SBE or EBE subconsultant or supplier utilization for a given contract. The minimum utilization requirement assigned by the director to each such contract may vary from contract to contract consistent with the availability of SBEs or EBEs with respect to such contract. Such minimum utilization requirement, if established, is not a goal, but a mandatory requirement of the contract. The DSBO shall establish a methodology for the establishment of minimum utilization requirements through rules and regulations. Such methodology shall consider the reasonably known availability of SBEs in specific industry groupings that are associated with individual projects.
(b) The following factors shall count toward SBE or EBE utilization requirements as more specifically provided below: portions of work undertaken by SBEs or EBEs as subconsultants, suppliers, manufacturers, manufacturer's representatives or brokers.
(c) The SBE or EBE minimum utilization requirements shall not be applied to concession agreements under this article VII.
(Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-216 [Reserved].
Denver Revised Municipal Code § 28-217 Defined selection pool contracts for professional design and construction services—Compliance with SBE or EBE minimum utilization.
Sec. 28-217. - Defined selection pool contracts for professional design and construction services—Compliance with SBE or EBE minimum utilization.
(a) The competitive selection process specifications for each defined selection pool professional design and construction services contract shall require that all proposers seeking to contract with the city on such project shall address any project SBE or EBE minimum utilization requirements as follows. If the proposer utilizes SBEs or EBEs as subconsultants, suppliers, manufacturers, manufacturer's representatives or brokers, the value of the commercially useful function to be performed by such SBEs or EBEs, including the cost of supplies and materials obtained by the SBE for the work of the contract, and supplies purchased or equipment leased by the SBE, except supplies and equipment the SBE: purchases or leases from the proposer or its affiliate, shall count to the extent provided in section 28-218 toward satisfaction of the SBE or EBE minimum utilization requirements. Graduation of an SBE 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.
(b) In order for its proposal to be deemed responsive, a proposer must meet the minimum utilization requirements for SBEs or EBEs on a particular contract as well as the proposer's self-performance or joint venture obligations set out in Section 28-214 above.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-218 Defined selection pool contracts for professional design and construction services—Identification of work scope of performing SBE or EBE and of other participating SBEs or EBEs.
Sec. 28-218. - Defined selection pool contracts for professional design and construction services—Identification of work scope of performing SBE or EBE and of other participating SBEs or EBEs.
(a) At the time of the proposal submitted to and authorized by the city or a private owner the proposer shall provide to the city or private owner a list of all SBEs or EBEs that are being utilized on the contract or concession agreement whether as a self-performing proposer or as subconsultants, suppliers, manufacturers, manufacturer's representatives, brokers or members of a joint venture. Unless otherwise specified in a request for qualifications, request for proposal or other proposal solicitation, in the event that a proposal is requested for the provision of on-call services for a period of time, with no delineation of the dollar amount of specific on-call projects, the proposer need list only the anticipated percentage participation of SBEs or EBEs rather than specific dollar amounts. The list shall specify:
(1) The name and contact information for each SBE or EBE;
(2) The description and percentage of the value of the commercially useful function to be performed by the SBE or EBE or the percentage of the revenues expected to be generated by the concession agreement, consistent with subsections (b) and (c), as compared to the total contract amount or the total revenues expected to be generated by the concession agreement. In the case of utilization of a supplier, manufacturer, manufacturer's representative, or broker, the appropriate percentage of dollar value attributable to such SBE or EBE as a commercially useful function shall be calculated with all underlying data supplied. If the proposer provides a dollar fee amount, then both the dollar value and percentage must be listed in the proposal.
(3) The percentage of the value of the commercially useful function to be performed by the SBE or EBE, consistent with subsections (c) and (d), as compared to the total contract or concession agreement amount;
(4) An adequate statement from the proposer that the dollar amount of work and/or the percentage of the work to be performed by such SBE or EBE on the contract or concession agreement, other than that self-performed by the proposer, was furnished to the proposer and agreed upon prior to the time of submission of the proposal submitted to and authorized by the city or a private owner; and
(5) An adequate statement from the proposer that it understands that a letter of intent, including, but not limited to, values provided by self-performing proposers, joint venturers, subconsultants, suppliers, manufacturers, manufacturer's representatives and brokers, expressed in dollar values and as a percentage of the overall work, must be submitted to the director for each SBE or EBE listed, including a self-performing proposer, at the time of submission of the proposal submitted to and authorized by the city or a private owner.
(b) Only that level of SBE or EBE utilization demonstrated in accordance with this section at the time of such date of proposal submitted and authorized by the city or a private owner may be counted in satisfaction of the requirements of this article VII. Proposers must submit an executed letter of intent for each SBE or EBE listed by the proposer, including a self-performing proposer, at the time of submission of the proposal submitted to and authorized by the city or a private owner. Failure to do so will render the proposal nonresponsive.
(c) All SBE or EBE consultants, subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives or brokers listed in a proposal must actually perform a commercially useful function in the work of a contract or the operation of a concession agreement within the area(s) for which they are certified, and must not function as a conduit. Consistent with industry or professional practice, and as permitted by rules and regulations adopted by the director, SBEs and EBEs may enter into subcontracts, including subcontracts with non-SBEs or non-EBEs. In no case, however, shall an SBE or EBE act as a conduit, nor shall the participation of an SBE or EBE count toward satisfaction of the requirements of this article VII to the extent it fails to perform a commercially useful function.
(d) All expenditures for materials, supplies and equipment obtained from an SBE or EBE manufacturer, manufacturer's representative or supplier shall count toward SBE self-performance or utilization as specified in subsection 28-204(39). Expenditures for materials, supplies and equipment paid to SBEs or EBEs that are not manufacturers, manufacturer's representatives or suppliers may count toward compliance with the requirements of this article VII only to the extent of fees or commissions charged for providing a bona fide service, such as professional, technical, consultant or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials or supplies required for performance of the contract or concession agreement, provided that the fee or commission is determined by the director to be reasonable and not excessive as compared with fees customarily allowed for similar services.
(e) Any agreement between a proposer and an SBE or EBE in which the proposer requires that the SBE not provide subconsulting quotations to other proposers is prohibited and shall render a proposer's proposal nonresponsive.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-219 Defined selection pool contracts for professional design and construction services—Responsive and nonresponsive proposals.
Sec. 28-219. - Defined selection pool contracts for professional design and construction services—Responsive and nonresponsive proposals.
(a) Responsive; compliance with requirements. The director shall notify the department head to regard the proposal as responsive if such proposal submitted to and authorized by the city or a private owner subject to the defined selection pool requirements indicates that the SBE or EBE proposer is appropriately performing a commercially useful function on the contract or concession agreement, and is otherwise responsive to the requirements of the contract or concession agreement and this article VII.
(b) Failure to meet requirements. The director shall notify the department head to regard the proposal as nonresponsive if such proposal subject to the defined selection pool requirements does not demonstrate performance by the SBE or EBE proposer of a commercially useful function, as set out in section 28-214, minimum utilization of SBE or EBE subconsultants and suppliers as set out in section 28-217, as applicable, or provide timely information as set out in section 28-218. Such determination that the proposal is nonresponsive shall result in no further consideration by the city or private owner of the proposal.
(c) Commercially useful function or minimum utilization of SBE or EBE subcontractors or suppliers—Informal meeting. In the event the director finds inadequacies in a bidder or proposer's demonstration of commercially useful function under section 28-214 or minimum utilization of SBE or EBE subcontractors or suppliers under section 28-217, the director will provide written notice of such inadequacies to the bidder or proposer prior to notifying the appropriate department head of bid or proposal responsiveness. Within two (2) business days from the date that the city notifies the bidder or proposer of such inadequacies, the bidder or proposer may request an informal meeting with the director. Such informal meeting shall be scheduled by the director. All deficiencies shall be explained to the bidder or proposer at such informal meeting. Within twenty-four (24) hours after the informal meeting, the bidder or proposer shall be allowed to submit additional information or to clarify its performance of a commercially useful function. At no time, however, will the director count toward the minimum utilization the addition of subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives, or brokers that may later be added to the contract or to the original SBE participation submitted at either the time of the bid or the date of proposal, in the case of a competitive selection process. After this informal meeting, the director will:
(1) Determine whether the bid or proposal will be responsive or nonresponsive;
(2) Make the notification as stated in subsection (b) above, as applicable; and
(3) Provide written notice to the bidder or proposer of the director's final determination.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-220 Time periods for documentation submitted to the city.
Sec. 28-220. - Time periods for documentation submitted to the city.
The documentation of achievement of defined selection pool and minimum SBE or EBE utilization performance requirements of a bidder or proposer, as applicable, shall be submitted to the director at the time of the bid opening date or proposal in the case of a competitive selection process or private owner selection for a construction contract, or at the time of submission of the proposal submitted to and authorized by the city or a private owner for a professional design and construction services contract or a concession agreement.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-221 [Reserved].
Denver Revised Municipal Code § 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.
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)
Denver Revised Municipal Code § 28-223 Project change orders, amendments and modifications.
Sec. 28-223. - Project change orders, amendments and modifications.
(a) Contractors and consultants on contracts and concessionaires on concession agreements hereunder shall have a continuing obligation to immediately inform the DSBO in writing of any agreed upon and user department approved increase or decrease in the scope of work of such contract or concession agreement, upon any of the bases discussed in this section, regardless of whether such increase or decrease in scope of work has been reduced to writing at the time of notification.
(b) Any increase in the scope of work of a contract for construction, reconstruction, or remodeling, whether by amendment, change order, force account or otherwise, or any increase in the scope of services of a contract for professional design or construction services or of a concession agreement, whether by amendment or any other addition of special, additional or other services to the contract or concession agreement, which increases the dollar value of the contract or concession agreement, if such change is within the scope of work designated for performance by the SBE or EBE or any utilized SBE or EBE subcontractor, subconsultant or supplier at the time of contract or concession agreement award, shall be immediately submitted to the DSBO. The contractor is responsible for obtaining user department approval of any such change. The contractor, consultant or concessionaire shall achieve defined selection pool requirements and, if applicable, minimum SBE subcontractor, subconsultant and supplier utilization requirements as respects such changed scope of work by performing such work or by retaining additional SBE or EBE subcontractor(s), subconsultant(s) or supplier(s).
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-224 Payments to SBE, SBEC, or EBE subcontractors, subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives and brokers.
Sec. 28-224. - Payments to SBE, SBEC, or EBE subcontractors, subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives and brokers.
All contractors and consultants shall promptly render payment to all subcontractors, subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives and brokers on a contract. Each contractor and consultant shall provide with each pay request to the city or private owner on each contract, beginning with the second pay request, partial claim releases from subcontractors, subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives and brokers in form and content satisfactory to the city, or shall provide, at the city's sole option, alternative proof of payment to subcontractors, subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives and brokers, in form and content approved by the department head and the director, evidencing that all subcontractors, subconsultants, suppliers, manufacturers, manufacturer's representatives and brokers have been duly paid out of the proceeds of the contractor's or consultant's payments from the city or private owner under the contract; unless a bona fide dispute, documented in writing, exists between the contractor or consultant and the unpaid subcontractor, subconsultant, joint venturer, supplier, manufacturers, manufacturer's representatives or broker. As provided by city and state law and city contracts, an agency, upon request from a contractor, may authorize payments to contractors from withheld retainage for contractors who have completed their work in a manner acceptable to the city.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-225 Prompt payment to SBE, SBEC, or EBE subcontractors.
Sec. 28-225. - Prompt payment to SBE, SBEC, or EBE subcontractors.
(a) Each contractor on a city contract with certified SBEs, SBECs, or EBEs as subcontractors shall pay the respective subcontractors any invoiced and undisputed amounts for accepted and completed work within thirty-five (35) days of the contractor's receipt of the subcontractor's invoice. Payment to the subcontractor shall be timely made as required under this section regardless of whether the contractor has been paid for the same work or payment period. For the purposes of the section 28-225, any subcontractor, regardless of whether that subcontractor holds a city contract, may be required to make payments to SBEs, SBECs, or EBEs as set forth in this section.
(b) Contractor is required to provide written notice of either approval or rejection of the subcontractor's invoice within ten (10) days of receipt. If the invoice is rejected, the written notice to the subcontractor shall include the objections, discrepancies or disputes regarding the invoice.
(c) Failure to comply with the payment requirements in this section may be grounds for withholding of payment by the city to the contractor, and may be grounds for breach of the city contract.
(d) The payment requirements under this section shall apply to SBE, SBEC, or EBE subcontractors utilized for satisfaction of the minimum utilization regardless of tier.
(e) SBEs performing as prime contractors shall be subject to the requirements under this section 28-225 regarding payment to SBE, SBEC, or EBE subcontractors.
(f) This section 28-225 shall apply only to contracts in the amount of one million dollars ($1,000,000.00) or more based on the original contract amount before amendments or changes.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-226 Participation modification; substitution; termination of SBE, SBEC, or EBE subcontractors.
Sec. 28-226. - Participation modification; substitution; termination of SBE, SBEC, or EBE subcontractors.
(a) A contractor that has been awarded a contract which includes SBE, SBEC, or EBE participation, or has duly added an additional or substitute SBE, SBEC, or EBE subcontractor to the contract in accordance with this division, may not substitute or terminate an SBE, SBEC, or EBE subcontractor without the DSBO's and user department's prior written concurrence as set forth herein. This includes, but is not limited to, instances in which a contractor seeks to perform work with its own forces or those of an affiliate, a non-SBE, non-SBEC, or non-EBE firm, or with another SBE, SBEC, or EBE firm that was originally designated for an SBE, SBEC, or EBE subcontractor.
(b) In the event that a contractor or consultant must substitute or terminate an SBE, SBEC, or EBE subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative or broker, except in cases where directed by the city, the following must be completed:
(1) The contractor must provide notice in writing to the SBE, SBEC, or EBE subcontractor, with a copy to DSBO and the user department, of its intent to request to terminate or substitute, and the reason for the request.
(2) The contractor must give the SBE, SBEC, or EBE subcontractor at least five (5) business days to respond to the contractor's notice.
(3) The DSBO in conjunction with the user department must provide concurrence and the reasons therefor stated in a written notification that the prime contractor has good cause to substitute or terminate the firm.
(4) In determining good cause to substitute or terminate the DSBO will consider all circumstances as a whole based on the following factors:
(i) The SBE, SBEC, or EBE subcontractor fails or refuses to execute a written contract;
(ii) The SBE, SBEC, or EBE subcontractor fails or refuses to perform the work consistent with normal industry standards; provided, however, that good cause does not exist if the failure or refusal of the SBE, SBEC, or EBE subcontractor to perform its work results from the bad faith or discriminatory action of the contractor;
(iii) The SBE, SBEC, or EBE subcontractor fails or refuses to meet the contractor's reasonable, nondiscriminatory bond requirements or insurance requirements;
(iv) The SBE, SBEC, or EBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;
(v) The SBE, SBEC, or EBE subcontractor is or becomes ineligible to work on city projects because of suspension and debarment;
(vi) The non-city owner or contractor has determined that the SBE, SBEC, or EBE subcontractor is not a responsible contractor;
(vii) The SBE, SBEC, or EBE subcontractor voluntarily withdraws from the project and provides to you written notice of its withdrawal;
(viii) The SBE, SBEC, or EBE subcontractor's participation cannot be counted toward the minimum participation requirement;
(ix) A SBE, SBEC, or EBE subcontractor owner dies or becomes disabled resulting in the SBE subcontractor's inability to perform or complete its work on the contract; or
(x) Other documented good cause that the DSBO determines requires termination of the SBE subcontractor.
(5) The SBE, SBEC, or EBE subcontractor shall be provided the opportunity to advise the DSBO, user department and the contractor of the reasons, if any, why it objects to the proposed termination, and why the DSBO should not concur with the contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), DSBO may provide a response period shorter than five (5) business days.
(6) In addition to post-award substitutions or terminations, the provisions of this section apply to reductions in scope of work and pre-award deletions of or substitutions of SBE, SBEC, or EBE firms by bidders or proposers prior to execution of a contract.
(c) If the DSBO and the user department concurs with the contractor's request to substitute, terminate or reduce the scope of work of the SBE subcontractor, the contractor must replace the terminated SBE, SBEC, or EBE subcontractor with another SBE, SBEC, or EBE firm certified to perform the same scope of work unless the contractor can demonstrate that it cannot replace the subcontractor to the DSBO's satisfaction.
(d) If a contractor substitutes or terminates the SBE subcontractor, or reduces the scope of work of the SBE, SBEC, or EBE subcontractor, without first complying with this section 28-226, the DSBO may find the contractor in violation of this ordinance and the contractor may be subject to enforcement and sanctions.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-227 Potential violations during contract or concession agreement performance.
Sec. 28-227. - Potential violations during contract or concession agreement performance.
(a) A contractor, consultant or concessionaire that has been awarded a contract or concession agreement based upon a given level of SBE, SBEC, or EBE participation shall not, at any time before or during the performance of such contract or concession agreement:
(1) Fail to in fact perform as an SBE, SBEC, or EBE, as applicable, to achieve the work scope that was originally listed at bid opening or proposal submission in order to achieve defined selection pool requirements; or
(2) Fail to in fact utilize SBE, SBEC, or EBE subcontractor(s), subconsultant(s) or supplier(s) to achieve the work scope that was originally listed at bid opening or proposal submission in order to achieve required minimum utilization of SBE, SBEC, or EBE subcontractors, subconsultants and suppliers, if applicable; or
(3) Modify or eliminate all or a portion of the scope of work attributable to the SBE or EBE upon which the contract or concession agreement was awarded, unless directed by the city; or
(4) Terminate an SBE, SBEC, or EBE 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 SBE, SBEC, or EBE subcontractor with another SBE, SBEC, or EBE subcontractor, performing the same commercially useful function and dollar amount, to substitute another SBE subcontractor; all subject to the DSBO's approval;
(5) Retaliate against any SBE, SBEC, or EBE subcontractor that reports issues to the DSBO or user department;
(6) Participate in a conduit relationship with an SBE, SBEC, or EBE subcontractor scheduled to perform work on the contract;
(7) Otherwise fail to meet the minimum utilization requirements; or
(8) Commit any other violation of this article VII, or rules and regulations promulgated hereunder, which constitutes a material breach of the contract, not mentioned above.
(b) Any action by a contractor, consultant or concessionaire in violation of subsections (a)(1) through (8) hereof, shall constitute a material breach of the contract or concession agreement that shall entitle the city or private owner 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 section 28-229. If, following contract or concession agreement award, an SBE, SBEC, or EBE has its certification terminated for reasons other than expiration of certification, or graduation from certification under section 28-206, or an SBE, SBEC, or EBE fails to perform a commercially useful function, the participation of which was originally counted for that SBE, SBEC, or EBE in awarding the contract or concession agreement, or an SBE, SBEC, or EBE voluntarily withdraws its participation on the contract or concession agreement and the contractor, consultant or concessionaire can demonstrate that such termination or failure did not result from any action or inaction, whether direct or indirect, of or by the contractor, consultant or concessionaire, such termination of certification or failure to perform a commercially useful function shall not be deemed to affect compliance with the contract or concession agreement defined selection pool requirements or minimum SBE, SBEC, or EBE utilization requirements, and shall not be deemed a breach of the contract or concession agreement.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-228 Burden of proof; investigations of compliance.
Sec. 28-228. - Burden of proof; investigations of compliance.
Any business enterprise affected by the operation of this article VII shall have the burden of proving its compliance with the requirements and obligations of the article, as applicable. The DSBO is empowered to receive and investigate complaints and allegations by SBEs, SBECs, EBEs, third parties or city personnel, or to initiate its own investigations regarding compliance with the requirements and obligations of this article VII. If the DSBO determines in its sole discretion that an investigation is warranted, upon written notice of such investigation the affected party shall be obligated to cooperate fully with the investigation and shall have a continuing burden of providing complete, truthful information to the director and of otherwise proving compliance with the requirements and obligations of this article VII.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-229 Sanctions for failure to comply with article VII requirements.
Sec. 28-229. - Sanctions for failure to comply with article VII requirements.
(a) If a contractor, consultant or concessionaire is found to be in violation of the provisions of article VII, to otherwise be in breach of a contract or concession agreement, to perform as an SBE, SBEC, or EBE for a non-commercially useful function or as a conduit, to fail to achieve required minimum SBE subcontractor, subconsultant and/or supplier utilization, if applicable, to fail to submit information required in section 28-220, to submit false, misleading or materially incomplete statements, documentation or records, or to fail to cooperate in an investigation, it shall be subject to sanctions. The city may exercise any or all of its rights, including, but not limited to, withholding funds including retentions, imposition of monetary penalty, suspension or termination, contained in the contract or concession agreement terms and conditions. If the contract or concession agreement is suspended or terminated, the city reserves all its rights at law or equity, with such suspension or termination being deemed a response to a contractor, consultant or concessionaire default, as appropriate, by applicable law.
(b) If the director determines, in his or her sole discretion, that a contractor, consultant or concessionaire is in noncompliance with article VII, the contractor, consultant or concessionaire may be assessed a civil, remedial penalty of not more than one hundred fifty (150) percent of the value of the minimum SBE, SBEC, or EBE participation underutilization, or in the case of a concession agreement, of not more than the revenues accruing to the concessionaire from its concession operations over the past three-month period. In assessing such civil penalty:
(1) The director shall calculate the applicable amount of civil penalty, and may reduce or waive all or part of such penalty, in his or her sole discretion, in consideration of the following factors:
a. The length of the period of noncompliance;
b. The history of previous noncompliance with this article VII;
c. The monetary impact of the civil penalty on the contractor, consultant or concessionaire in correcting such noncompliance; or
d. The other facts and circumstances relevant to the noncompliance of the contractor, consultant or concessionaire.
(2) The director shall collect assessed and unpaid civil penalties under this subsection by action initiated in the state district court for collection of such penalty. A stay of any order of the director pending judicial review shall not relieve any contractor, consultant or concessionaire from any civil penalty obligation imposed under this subsection.
(3) Any such assessed civil penalties may also be offset against any amount, including, but not limited to, contract retainage, otherwise due and owing to the contractor, consultant or concessionaire on the contract or concession agreement.
(4) The contract or concession agreement may be suspended or terminated with the city reserving all its rights at law or equity, with such suspension or termination being deemed a response to a contractor, consultant or concessionaire default, as appropriate, by applicable law.
(5) The debarment board established under Denver Revised Municipal Code Section 20-77, upon request of the director, may suspend or debar the contractor, consultant or concessionaire from participation in city or private contracting covered hereunder for a period as may be determined by the debarment board, in its sole discretion, based upon the grounds of violating this article VII, pursuant to such suspension and debarment procedures as may be established by the city, as set forth in Denver Revised Municipal Code Section 20-77. The director in that event shall regard as nonresponsive any bid, proposal or competitive selection process proposal received during this time period that includes the contractor, consultant or concessionaire as a contractor, consultant, concessionaire, subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative, or broker.
(6) If a contractor, consultant, concessionaire or other business enterprise knowingly receives new or additional work on a contract or concession agreement as a result of actions set out in this section, then the penalties in this section may be applied to such business enterprise.
(7) The DSBO may suspend or revoke an offending SBE's, SBEC's, or EBE's eligibility for certification, may suspend its participation from counting toward achieving defined selection pool and/or SBE minimum utilization requirements if applicable, and, subject to other city law, may refer to the debarment board to suspend or debar it from participating in future city contracts or concession agreements, based upon such SBE's, SBEC's or EBE's acting as a conduit, failing to comply with the provisions of article VII, failing to perform a commercially useful function on a project, failing to achieve required SBE minimum subcontractor, subconsultant and/or supplier utilization if applicable, failing to submit information as required by section 28-220, submitting false, misleading or materially incomplete statements, documentation or records, or failing to cooperate in investigations.
(c) The director may, in his or her sole discretion, impose any one (1) or more of the sanctions set out in this section against any contractor, consultant, concessionaire or joint venturer determined to be in violation of the section, provided that the director shall first advise the affected department head of the proposed sanction in writing. If the department head advises the director in writing that the department head believes that imposition of such sanction would not be in the best interests of the city, the director shall consult with the department head prior to making a final decision as to whether to impose such sanctions.
(d) Consistent with article VII and the rules and regulations, the DSBO may prescribe corrective actions in the case of potential violations or in lieu of potential enforcement.
(e) Suspected criminal violations shall be referred to the proper authorities for prosecution. If a conviction or a guilty plea is obtained pursuant to such prosecution, the perpetrator may be barred from contracting with the city to the extent authorized by law.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-230 State or federal law and other guidelines.
Sec. 28-230. - State or federal law and other guidelines.
In making any findings required herein, the director may incorporate by reference rules, procedures and powers of C.R.S. § 24-4-101 et seq. as they may exist on the date of repeal and reenactment of this article VII or as they may be amended. In making any findings required herein or in aid of definition or interpretation of any term or phrase herein, the director may utilize as a guide or adopt by rule and regulation, insofar as they are consistent with the purposes of this article VII, provisions of federal law, including without limitation the provisions of 49 Code of Federal Regulations and 13 Code of Federal Regulations, or successor regulations, as they exist on the date of repeal and reenactment of this article VII or as they may be amended.
(Ord. No. 286-20, § 4, 4-13-20)
Denver Revised Municipal Code § 28-231 Reporting.
Sec. 28-231. - Reporting.
The director shall prepare written reports two (2) times each year that this article VII is in effect that shall describe defined selection pool requirements applied to contracts and concession agreements under this article VII. Copies of such reports shall be provided to the affected department heads, city council and the mayor according to the following schedule:
In addition, the report shall encompass the implementation of this article VII as well as a report and justification of SBE, SBEC, or EBE defined selection pool requirements and minimum SBE utilization requirements by contract or concession agreement including all change orders, amendments and modifications.
In calculating SBE, SBEC, or EBE participation, all funds paid to SBEs, SBECS, and EBEs on city defined selection pool contracts and all revenues received by SBEs or from city concession agreements by SBECs during the year shall be counted whether or not such funds were used to compensate SBEs, SBECs, and EBEs or such concession revenues were received by SBEs or SBECs for the performance of a commercially useful function.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-232 Annual report.
Sec. 28-232. - Annual report.
For each year that this article VII is in effect, by March 1 of the following year, the director shall submit to the mayor and council a report describing SBE, SBEC, or EBE defined selection pool levels achieved in the preceding year and making recommendations as to continuing or further efforts that the city should make in efforts to assist in the development and utilization of SBEs in city construction and professional design and construction services contracting, and utilization of SBECs in city concession opportunities, and recommending what should be done to assist in achieving such SBE, SBEC, or EBE participation in the future. The annual report shall be regarded as one of the reports required under section 28-231.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 833-21, § 20, 8-23-21)
Denver Revised Municipal Code § 28-233 Rules and regulations; guidelines.
Sec. 28-233. - Rules and regulations; guidelines.
The director shall have the power and authority to adopt rules and regulations or guidelines to effectuate the purpose, procedures and operations of this article VII.
(Ord. No. 286-20, § 4, 4-13-20)
Denver Revised Municipal Code § 28-234 Severability.
Sec. 28-234. - Severability.
If any provision of this article VII or its application is held invalid or unenforceable, such invalidity or unenforceability shall not affect other provisions or applications of this article VII that can be given effect without the invalid provisions or applications and the remaining provisions are to be severable and shall remain in full force and effect.
(Ord. No. 286-20, § 4, 4-13-20)
Denver Revised Municipal Code § 28-235 Effective date of ordinance.
Sec. 28-235. - Effective date of ordinance.
This article VII shall become effective on May 2, 2020 and shall apply to all contracts and concession agreements within the scope of the article for which bids or proposals are publicly advertised on or after May 2, 2020.
(Ord. No. 286-20, § 4, 4-13-20)
Denver Revised Municipal Code § 28-236 Review and sunset.
Sec. 28-236. - Review and sunset.
(a) This article VII shall be reviewed by the mayor, director and department heads on the third anniversary of its enactment, in order to determine whether adjustments or revisions to article VII or additional studies or inquiries in furtherance of article VII are deemed appropriate and should be undertaken or recommended, in order to further and maintain the purpose and intent of article VII.
(b) This article VII shall be repealed effective October 31, 2026.
(Ord. No. 286-20, § 4, 4-13-20; Ord. No. 457-25, § 3, 4-28-25)
Source: City and County of Denver, Revised Municipal Code and Charter (Municode Library, library.municode.com)URL: https://library.municode.com/co/denver/codes/code_of_ordinances?nodeId=TITIIREMUCO_CH28HURI_ARTVIIOPSMBUENEMBUENCOCOREREPRDECOSESMBUENCOCOAGTHDESEPOCOCOAGFetched: 10/27/2026