Sec. 28-35. - Definitions.
As used in this article III and its divisions, 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 MWBE or with the owner(s) of such MWBE. Businesses are affiliates of each other when one (1) 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, including related SBA guidance documents, as from time to time amended.
(2) Annual goal means the targeted level for the aspirational goal established by the city for the annual aggregate participation of MWBEs in city contracts.
(3) Applicant business enterprise means a business enterprise seeking to be certified as a minority and/or woman business enterprise under this article III and its divisions.
(4) 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.
(5) 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 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 the participation goal as set out in sections 28-59 and 28-63. A packager shall be considered and treated as a broker.
(6) 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 person(s) 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.
(7) 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 MWBE under this article III and its divisions. Certification neither represents nor implies that a business enterprise is qualified to perform on a contract, nor that it performs a commercially useful function.
(8) City means the City and County of Denver and its participating user departments.
(9) City's marketplace means the geographic and procurement area in which the city contracts on an ongoing basis, as established by the findings of the Denver City Council.
(10) City project; city contract; city construction practices mean any contract or project encompassed within the definition of contract in article III and its divisions, regardless of whether the project owner is the city or a private owner. All provisions of this article III and its divisions 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.
(11) Commercially useful function means an MWBE is responsible for the execution of a distinct element of the work of a contract and carries 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 MWBE is performing or has performed a commercially useful function, the DSBO will analyze and evaluate the quantity of work subcontracted; the amount paid to the MWBE in proportion to the work actually performed; whether the MWBE is performing functions set forth in this definition and this article III and its divisions including, but not limited to, responsibility for, with respect to materials, supplies or equipment used for the contract work; negotiating price for the materials, supplies or equipment; determining quantity and quality of the materials, supplies or equipment; ordering materials, supplies or equipment; performing installation where applicable; paying for the materials, supplies or equipment; credit claimed toward participation goal achievement; and other relevant factors. Commercially useful function is measured for purposes of determining participation on a contract, not for determination of certification eligibility.
(12) Competitive selection process has the meaning ascribed to that phrase in sections 2.3.3(A) and 2.11.3(8) 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.
(13) Conduit means an MWBE 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 to a non-MWBE firm or does not carry out the responsibilities required for MWBE participation by actually performing, managing, controlling or supervising the work under a contract. In this type of relationship, the MWBE 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 MWBE's participation does not count toward the MWBE goal on the contract. 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, including construction management services. This definition shall encompass design-build contracts as appropriate.
(15) Consultant means a business enterprise that enters into a 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 article VII of this chapter 28 or to federal DBE requirements. Contract shall include other contracts ancillary to cooperative agreements or understandings with other public and private agencies for purposes of 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 contracts 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 or otherwise competitively selected 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) Department head means the manager or director of the city department, user department or agency entering into contract(s) utilizing MWBE participation, or such person's designee.
(20) 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.
(21) Director means the director of the division of small business opportunity or successor agency, or such director's designee.
(22) DSBO or the DSBO means the division of small business opportunity.
(23) DSBO required forms means the certifications, letters of intent, commitment forms and other forms and documents developed by DSBO or described in this article III and its divisions and the rules and regulations, referenced in applicable procurement documents, and required by DSBO to confirm and evaluate a bidder's or proposer's commitment to utilization of certified firms and other DSBO program requirements. No unauthorized alteration or modification of a DSBO required form is permitted. DSBO reserves the right to reject altered or modified forms.
(24) Doing business means having a physical location from which to engage in for-profit activities in the scope(s) of expertise of the business enterprise.
(25) Economically disadvantaged means an individual with a personal net worth equal to or less than the permissible 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.
(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) [Reserved]
(28) Good faith efforts means substantive and meaningful good faith actions undertaken by a contractor or consultant to achieve the MWBE participation goal as defined in more detail in sections 28-60 and 28-64 of this article III and its divisions.
(29) Individual or person means a natural human being, and not a legally-created or maintained entity.
(30) Integrated contract means contract or contracts for construction procured and awarded for a city construction project or program, including where the awarded contractor may be authorized to conduct bidding or solicit proposal of contractors or subcontractors under city requirements, without a specific pre-determined project or scope of work. Once specific scope or scopes of work are identified, various projects, separate procurements, or individual work orders or task orders are authorized, and the contractor proceeds to complete the work under the separate contracts, projects or the individual work orders or task orders.
(31) 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 and construction services contract for which purpose they combine their property, capital, efforts, skills and knowledge and in which endeavor each joint venturer is responsible for a distinct, clearly defined portion of the work of the contract, 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. Only the portion of the total dollar value of a joint venture contract equal to the distinct, clearly defined work that the MWBE performs with its own forces as a commercially useful function will count towards MWBE participation.
(32) Letter of intent means a DSBO required form that shall be a written communication from a project bidder or proposer to the city or a private owner with respect to a contract, evidencing an understanding between an MWBE and the bidder or proposer that, if the bidder or proposer is selected, then such MWBE has or will enter into a contractual relationship with the bidder or proposer on such contract or that such bidder or proposer will self-perform as an MWBE on such contract.
(33) 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 MWBE under a contract shall count toward MWBE participation.
(34) 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 the products. Only bona fide commissions earned by a manufacturer's representative in performing a commercially useful function on a contract shall be counted toward the participation goal as set out in sections 28-59 and 28-63.
(35) Mentor-Protégé means a relationship between a subcontractor certified as an MWBE (protégé) and a more experienced contractor (mentor) approved by DSBO. In a mentor-protégé relationship, the mentor provides guidance on technical, financial, bonding, equipment, and personnel assistance to the protégé. The purpose of the relationship is to increase the capacity of MWBEs to perform city contracts.
(36) Minority business enterprise or MBE means a business enterprise that is certified by the director under this article III and its divisions as meeting all of the requirements for certification set forth in sections 28-53 and 28-55 as an MBE. A business enterprise owned by individuals who are both socially and economically disadvantaged minority individuals and women may be certified as both an MBE and a WBE. For purposes of this article III and its divisions, an MBE or WBE certified with DSBO in accordance with this article III and its divisions and the applicable rules and regulations shall be referred to as an MWBE.
(37) Minority individual means:
(a) An individual whose lifelong cultural and social affiliation is with one (1) of the following groups encompassed within the findings of the Denver City Council, which are rebuttably presumed to be socially disadvantaged:
(i) Blacks/African-Americans, which includes persons having origins in any of the black racial groups of Africa;
(ii) Hispanic-Americans, which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;
(iii) Native-Americans, which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; or
(iv) Asian-Americans (persons whose origins are in any of the original peoples of the far east, Southeast Asia, the islands of the Pacific or the Northern Marianas, or the Indian subcontinent); or
(b) Alternatively, on a case-by-case basis for the purposes of this article III and its divisions, an individual found by the city to have been subjected to individualized racial or ethnic prejudice or cultural bias within American society within the city's marketplace because of his or her identity as a member of a group other than the groups referenced in subsection (a) above, without regard to individual qualities, and therefore determined by the director to be individually socially disadvantaged under this subsection; and
(c) Individual social disadvantage must stem from circumstances beyond the individual's control. Evidence of individual social disadvantage must include:
(i) At least one (1) objective, distinguishing feature that has contributed to social disadvantage, such as disability, long-term residence in an environment isolated from the mainstream of American society within the city's marketplace or other similar barriers not common to individuals who are not socially disadvantaged.
(ii) Personal experiences of substantial and chronic social disadvantage in American society within the city's marketplace.
(iii) Negative impact on entry into or advancement in the city's marketplace and participating on city contracts because of the disadvantage, as demonstrated by the individual's education, employment and business history.
(38) On-call construction or design contracts or on-call projects means contracts that are procured and awarded without a pre-determined specific project or scope of work. Once a specific scope of work is identified, individual work orders or task orders are authorized, and the contractor proceeds to complete the work under the individual work order or task order.
(39) 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, manufacturer, or manufacturer's representative. A packager shall be considered and treated as a broker.
(40) Participation goal means the specific MWBE goal established for a particular contract, on-call contract, or city project including task orders or work orders, or at the city's option for separate procurements under an integrated contract, based upon the availability of MWBEs in the scope(s) of work of the contract.
(41) 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 MWBE 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 MWBE under this article III and its divisions, 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.
(42) Private owner means a private or other non-city owner undertaking to contract for construction work or for design or construction management services on buildings or aviation or aeronautical facilities or improvements thereto, on real property owned by the city.
(43) 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, but not limited to, engineering, architectural, testing, and planning services and all other professional services related to construction projects.
(44) Proposal means an offer to perform construction or professional design and construction services pursuant to a negotiated or otherwise competitively selected city contract 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 III and its divisions.
(45) Proposer means a business enterprise that submits a proposal on a city construction contract or professional design and construction services contract that is negotiated and not competitively bid or that utilizes a competitive selection process.
(46) Public-private partnership agreement (or P3 agreements) means city contract or contracts for some combination of the following for the development, financing, design, construction, operation and maintenance of public facilities, buildings or aviation or aeronautical facilities, or improvements thereto, where such contracts provide for funding in whole or in part by the city or private funding and provide for utilization of such funds for the purpose of development, financing, construction, professional design and construction, professional services or operation and maintenance services for public facilities or areas owned or leased by the city or situated on real property owned or leased by the city. For purposes of this article III and its divisions, such contracts shall allow the performance of design, professional services or construction, subject to city laws, rules and regulations, of a public facility by a public or private entity on city owned or leased land. Notwithstanding the foregoing, such contract or contracts shall also include development, financing, construction, professional design, professional services and construction services contracts by private owners on real property owned or leased by the city, without regard to the utilization of city funding.
(47) Qualified, with respect to good faith efforts in this article III and its divisions, means that a business enterprise has the financial ability, expertise, skill, experience, and access to the necessary staff, facilities and equipment to complete contract(s) or subcontract(s) that it may undertake on projects. The city makes no representations as to the qualification of any applicant business enterprise MWBE.
(48) 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 MWBE 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.
(49) Socially disadvantaged means a minority individual or woman who has been subjected to racial, ethnic or gender prejudice or significant cultural bias within American society in the city's marketplace because of his or her identity as a member of a group and without regard to individual qualities. Social disadvantage must stem from circumstances beyond the individual's control. A socially disadvantaged individual must be a citizen or lawfully admitted permanent resident of the United States.
(50) Subcontractor or subconsultant means a business enterprise that has entered into a contract with a general contractor or prime contractor to provide goods or services pursuant to a contract between the general contractor or prime contractor and the city. A 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, 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.
(51) 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. The participation goal shall be counted in accordance with the function performed by the MWBE supplier under a contract and determined on a per-contract or per-project basis.
(52) Teaming agreement means an agreement between a prime or general contractor and an MWBE subcontractor or an agreement between a consultant and an MWBE subconsultant to:
(a) Develop the capacity of the MWBE under the bid or proposal to the city; and
(b) Describes how the parties are going to share work under the bid or proposal for the primary scope of work under the bid or proposal.
(53) Utilization plan means a required plan, prepared by or on behalf of the bidder or proposer as required by DSBO and set forth in the applicable contract procurement documents that describes the bidder's or proposer's approach to satisfying the small, minority, and women-owned business enterprise requirements including, but not limited to, the participation goal.
(54) Woman means a person of the female gender, encompassed within the findings of, the Denver City Council, who is rebuttably presumed to be socially disadvantaged.
(55) Woman business enterprise or WBE means a business enterprise that is certified by the director under this article III and its divisions as meeting all of the requirements for certification set forth in sections 28-53 and 28-55 as a WBE.
For purposes of this article III and its divisions, the director shall classify business enterprises with both minority and women owners, and meeting the requirements for certification as an MWBE, as MBEs if socially and economically disadvantaged minority individual(s) own fifty-one (51) percent or more of ownership, and as WBEs if socially and economically disadvantaged women own fifty-one (51) percent or more of ownership. A business enterprise owned by individuals who are both socially and economically disadvantaged minority individuals and women may be certified as both an MBE and a WBE. For purposes of this article III and its divisions, an MBE or WBE certified with DSBO in accordance with ordinance and the applicable rules and regulations shall be referred to as an MWBE.
(Ord. No. 286-20, § 1, 4-13-20; Ord. No. 833-21, § 1, 8-23-21)
