Compliance and Enforcement

Denver Revised Municipal Code ch. 28, art. III, div. 3, subpt. III

in effect

Denver Revised Municipal Code § 28-69 Administrative review and court proceedings.

Sec. 28-69. - Administrative review and court proceedings. (a) Any person who disputes any determination made by or on behalf of the city pursuant to the authority of the director, which determination adversely affects such person, may petition the executive director for a hearing concerning such determination no later than thirty (30) days after the date of the determination. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this section, and failure of compliance shall forever bar any such action. This section shall not be construed to create a right of standing that does not otherwise exist under Colorado law. (b) The executive director may hold such hearing or in the executive director's sole discretion may designate and request an officer or employee of the DSBO, or an independent hearing officer retained by the city, as a hearing officer with authority to hold such hearing or hearings. (c) Such petition shall be in writing, and the facts and figures submitted shall be submitted under oath or affirmation either in writing or orally at a hearing scheduled by the executive director or the hearing officer. The hearing, if any, shall take place in the city, and notice thereof and the proceedings shall otherwise be in accordance with rules and regulations issued by the director. The petitioner shall bear the burden of persuasion and the burden of going forward, and the standard of proof shall conform to that in civil, non-jury cases in state district court, provided that the executive director may provide, by rule and regulation, for either review of the record or for limited de novo review of different types of questions coming before the executive director. (d) Thereupon, the executive director or designee shall make a final determination. Such final determination shall be considered a final order of the executive director and may be reviewed under Rule 106(a)(4) of the state rules of civil procedure by the petitioner or by the city. A request for reconsideration of the final determination may be made if filed with the executive director within fifteen (15) days from the date of determination, in which case the executive director shall review the record if the proceedings were conducted by a designated hearing officer, and the determination shall be considered a final order of the director upon the date the director rules on the request for reconsideration. (e) Pursuant to Rule 106(a)(4) of the state rules of civil procedure, the district court of the second judicial district of the state shall have original jurisdiction in proceedings to review the final order. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-70 Project change orders, amendments and modifications.

Sec. 28-70. - Project change orders, amendments and modifications. (a) Contractors and consultants on contracts 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, upon any of the bases discussed in this section 28-70, 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, whether by amendment or any other addition of special, additional or other services to the contract, which increases the dollar value of the contract, whether or not such change is within the scope of work designated for performance by a MWBE at the time of contract award, shall be immediately submitted to the DSBO. The contractor is responsible for obtaining user department approval of any such change. Those amendments, change orders, force accounts or other contract modifications that involve a changed scope of work that cannot be performed by existing project subcontractors, subconsultants, joint venturers, suppliers, manufacturer, manufacturer's representatives or brokers, or by the contractor or consultant, shall be subject to a goal for MWBEs equal to the original participation goal on the contract that was included in the bid or proposal requirements. The contractor or consultant shall satisfy such goal as respects such changed scope of work by soliciting new MWBEs in accordance with section 28-62 or 28-66 as applicable, or the contractor or consultant must show each element of good faith efforts and other applicable requirements set out in sections 28-60, 28-64, 28-73, or section 28-74(c) hereof. The original participation goal percentage shall be applied to the new, increased dollar amount of the contract. The contractor or consultant shall supply to the director and user department the documentation described in sections 28-60, 28-64, 28-73, or 28-74(c) with respect to the increased dollar value of the contract. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-71 Payments to MWBE subcontractors, subconsultants, joint venturers, suppliers, manufacturers, manufacturer's representatives and brokers.

Sec. 28-71. - Payments to MWBE 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 as required under this section. Consistent with user department requirements, each contractor 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, 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 by the contractor or consultant unless a bona fide dispute, documented in writing, exists between the contractor or consultant and the unpaid subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative 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, § 2, 4-13-20)

Denver Revised Municipal Code § 28-72 Contractor prompt payment; MWBE subcontractors.

Sec. 28-72 - Contractor prompt payment; MWBE subcontractors. (a) Each contractor on a city contract with certified MWBEs 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 28-72, any subcontractor, regardless of whether that subcontractor holds a city contract, may be required to make payments to MWBEs as set forth in this section. (b) Contractor is required to provide written notice to its subcontractor 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 deficiencies 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 MWBE subcontractors regardless of tier. (e) This section 28-72 shall apply only to city 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, § 2, 4-13-20)

Denver Revised Municipal Code § 28-73 Participation modification; substitution; termination of MWBE subcontractors.

Sec. 28-73. - Participation modification; substitution; termination of MWBE subcontractors. (a) A contractor that has been awarded a contract based upon a given level of MWBE participation, or has duly added an additional or substitute MWBE subcontractor to the contract in accordance with this division 3, but intends to substitute or terminate an MWBE subcontractor must comply with this section 28-73, as directed by the DSBO and the user department, regarding the intended substitution or termination. 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-MWBE firm, or with another MWBE as a substitution for an originally designated for an MWBE subcontractor. (b) In the event that a contractor or consultant intends to substitute or terminate an MWBE subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative or broker, or otherwise modify or eliminate all or a portion of work attributable to an MWBE, except in cases where directed by the city, the following must be completed: (1) The contractor must provide notice in writing to the MWBE subcontractor, with a copy to the DSBO and user department, of its intent to request to terminate or substitute, and the reason for the request. (2) The contractor must give the MWBE 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 MWBE subcontractor fails or refuses to execute a written contract; (ii) The MWBE 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 MWBE subcontractor to perform its work results from the bad faith or discriminatory action of the contractor; (iii) The MWBE subcontractor fails or refuses to meet the contractor's reasonable, nondiscriminatory bond requirements or insurance requirements; (iv) The MWBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness; (v) The MWBE subcontractor is or has become ineligible to work on city projects because of suspension or debarment; (vi) The non-city owner or contractor has determined that the MWBE subcontractor is not a responsible contractor; (vii) The MWBE subcontractor voluntarily withdraws from the project and provides written notice of its withdrawal; (viii) The MWBE's work cannot be counted toward participation in accordance with this article III and its divisions; (ix) An MWBE owner dies or becomes disabled resulting in the MWBE's inability to perform or complete its work on the contract; or (x) Other documented good cause that the user department or DSBO determines requires termination of the MWBE subcontractor. (5) The MWBE 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), the DSBO may provide a response period shorter than five (5) business days. (6) In addition to substitutions or terminations occurring during contract performance, the provisions of this section may apply to reductions in scope of work or substitutions of MWBE firms by bidders or proposer prior to contract execution. (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 MWBE subcontractor, the contractor must comply with good faith efforts requirements to replace the terminated MWBE subcontractor with another MWBE firm certified to perform the scope of work. (d) If a contractor substitutes or terminates the MWBE subcontractor, or reduces the scope of work of the MWBE subcontractor, without first complying with this section 28-73, the DSBO may find the contractor in violation of this division and the contractor may be subject to enforcement and sanctions. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-74 Potential violations during contract performance.

Sec. 28-74. - Potential violations during contract performance. (a) A contractor or consultant that has been awarded a contract based upon a given level of MWBE participation shall not, at any time before or during the performance of such contract: (1) Fail to in fact utilize an MWBE that was originally listed at bid opening or proposal submission in order to satisfy the participation goal, and that submitted a timely letter of intent, without substituting with another MWBE performing the same commercially useful function and dollar amount, or demonstrating each element of good faith efforts, as defined in subsection (c) hereof, to substitute an MWBE; or (2) Fail to allow an MWBE functioning as a subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative, or broker to perform the commercially useful function, the value of which was originally counted for that MWBE in awarding the contract; or (3) Modify or eliminate all or a portion of the scope of work attributable to an MWBE upon which the contract was awarded without first complying with section 28-73, unless directed by the city; or (4) Terminate an MWBE originally utilized as a subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative or broker in order to be awarded the contract without complying with section 28-73; or (5) Retaliate against any MWBE that reports issues to the DSBO or user departments; or (6) Participate in a conduit relationship with an MWBE scheduled to perform work on the contract; or (7) Otherwise fail to meet the participation goal without complying with good faith efforts requirements; or (8) Commit any other violation of this article III and its divisions, or rules and regulations promulgated thereunder, which constitutes a material breach of the contract, not mentioned above. (b) Any action by a contractor or consultant in violation of subsections (a)(1) through (8) hereof, shall constitute a material breach of the contract 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 28-76. If, following contract award, an MWBE has its certification terminated for reasons other than expiration of certification, or graduation from certification under section 28-55, or an MWBE fails to perform a commercially useful function, the value of which was originally counted for that MWBE, as applicable, in awarding the contract, or an MWBE voluntarily withdraws its MWBE participation on the contract and the contractor or consultant can demonstrate that such termination or failure did not result from any action or inaction, whether direct or indirect, of or by the contractor or consultant, such termination of certification or failure to perform a commercially useful function shall not be deemed a breach of the contract; provided, however, that the requirements of section 28-73 are satisfied. (c) In the event that a contractor or consultant must add or replace an MWBE subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative or broker or in the event that a new scope of work is added to the ongoing contract, and the contractor or consultant in such event is in noncompliance with maintenance of the original participation goal upon which the contract was awarded, due to failure to utilize additional MWBEs, the contractor or consultant shall be required to demonstrate good faith efforts in compliance with section 28-60, section 28-64, or section 28-73 as applicable. Failure of a contractor or consultant to show good faith efforts shall render its contract performance in noncompliance with this article III and its divisions. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-75 Burden of proof; investigations of compliance.

Sec. 28-75. - Burden of proof; investigations of compliance. Any business enterprise affected by the operation of this article III and its divisions shall have the burden of proving its compliance with the requirements and obligations of the article III and its divisions. The DSBO is empowered to receive and investigate complaints and allegations by MWBEs, third parties or city personnel, or to initiate its own investigations regarding compliance with the requirements and obligations of this article III and its divisions. 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 III and its divisions. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-76 Contract sanctions for failure to comply with requirements.

Sec. 28-76. - Contract sanctions for failure to comply with requirements. (a) If a contractor or consultant is found to be in violation of the provisions of article III, to otherwise be in breach of a contract, to perform as or to utilize MWBEs for a non-commercially useful function or as a conduit, to fail to submit information required in section 28-67, to submit false, misleading or materially incomplete statements, documentation or records, including, but not limited to, good faith efforts or letters of intent, or to fail to cooperate in an investigation, it shall be subject to sanctions. The city may exercise any or all of its rights contained in the contract terms and conditions, including, but not limited to, withholding funds including retainage, imposition of monetary penalty, or suspension or termination of the pertinent contract. If the contract 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 or consultant default, as appropriate, by applicable law. (b) In the event that the director determines, in his or her sole discretion, that a contractor or consultant is in noncompliance with article III or its divisions, the contractor or consultant may be assessed a civil, remedial penalty, of not more than one hundred fifty (150) percent of the value of MWBE underutilization demonstrated for each MWBE involved. 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 any provision of this article III and its divisions; c. The monetary impact of the civil penalty on the contractor or consultant in correcting such noncompliance; or d. The other facts and circumstances relevant to the noncompliance of the contractor or consultant. (2) The director shall collect assessed and unpaid civil penalties under this subsection by action initiated in state district court for collection of such penalty. A stay of any order of the director pending judicial review shall not relieve any contractor or consultant from any civil penalty obligation imposed under this section. (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 or consultant on the contract. (4) The contract 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 or consultant 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 or consultant 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 III and its divisions, 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 or consultant as a contractor, consultant, subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative, or broker. (6) If a contractor or consultant or other business enterprise knowingly receives new or additional work on a contract 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 MWBE's eligibility for certification, may suspend its participation from counting toward a participation goal, and, subject to other city law, may suspend or debar it from participating in future city contracts, based upon such MWBE's acting as a conduit, failing to comply with the provisions of article III and its divisions, failing to perform a commercially useful function on a contract, failing to submit information as required by section 28-67, 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, subcontractor, subconsultant, joint venturer, supplier, manufacturer, manufacturer's representative, or broker 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 III and its divisions 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, § 2, 4-13-20)

Denver Revised Municipal Code § 28-77 State or federal law and other guidelines.

Sec. 28-77. - 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 enactment of this article and its divisions 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, or by way of procedure or process, the director may utilize as a guide, insofar as they are consistent with the purposes of this article III and its divisions, 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 enactment of this article III and its divisions or as they may be amended, provided that no substantive provision of such federal law that is inconsistent with or contradictory to the provisions of this article III and its divisions shall be used. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-78 Reporting.

Sec. 28-78. - Reporting. The director shall prepare written reports no less than two (2) times each year which shall describe progress in meeting the annual goal set out in section 28-57. Copies of such reports shall be provided to the affected department heads, city council and the mayor. In addition, the report shall encompass the implementation of this article III and its divisions and discussion of setting and justification of participation goals and achievements, including, but not limited to, contract change orders, amendments and modifications. In calculating MWBE participation, all funds paid on city contracts with MWBE goals during the year shall be counted whether or not such funds were used to accomplish participation goals applicable at the time of bid opening, date of proposal in the case of a competitive selection process, or other proposal receipt. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-79 Annual report; explanation of failure to achieve annual goal.

Sec. 28-79. - Annual report; explanation of failure to achieve annual goal. If the annual goal in section 28-57 is not met in any year, then by March 1 of the following year, the director shall submit to the mayor and city council a report comparing MWBE utilization achieved in the year to the aspirational annual goal, stating the reasons why the goal was not met, and advising and making recommendations as to continuing or further efforts that the city will take in eliminating identified discrimination in city construction, reconstruction and remodeling, and professional services, including design, and construction services contracting, and recommending actions to assist in meeting such goal in the future. This annual report shall be considered one (1) of the two (2) required reports under section 28-78. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-80 Severability.

Sec. 28-80. - Severability. If any provision of this division 3 or its application is held invalid or unenforceable, such invalidity or unenforceability shall not affect other provisions or applications of this division 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, § 2, 4-13-20)

Denver Revised Municipal Code § 28-81 Effective date of division.

Sec. 28-81. - Effective date of division. This division 3 shall become effective on May 2, 2020 and shall apply to all contracts within the scope of the division for which bids or proposals are publicly advertised on or after May 2, 2020. (Ord. No. 286-20, § 2, 4-13-20)

Denver Revised Municipal Code § 28-82 Review and sunset.

Sec. 28-82. - Review and sunset. (a) This division 3 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 division 3 or additional studies or inquiries in furtherance of division 3 are deemed appropriate and should be undertaken or recommended, in order to further and maintain the purpose and intent of division 3. (b) This division 3 shall be repealed effective October 31, 2026. (Ord. No. 286-20, § 2, 4-13-20; Ord. No. 457-25, § 1, 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_ARTIIINOCOCOREREPRDECOSE_DIV3NOCOCOREREPRDECOSE_SDIIICOENFetched: 10/27/2026