• No results found

AC TRANSIT DISTRICT GC Memo No a Board of Directors Executive Summary Meeting Date: May 16, 2007

N/A
N/A
Protected

Academic year: 2021

Share "AC TRANSIT DISTRICT GC Memo No a Board of Directors Executive Summary Meeting Date: May 16, 2007"

Copied!
5
0
0

Loading.... (view fulltext now)

Full text

(1)

BOARD ACTION: Approved as Recommended [ ] Other [ ] Approved with Modification(s) [ ]

[To be filled in by District Secretary after Board/Committee Meeting]

The above order was passed on ___________________, 2007. Linda Nemeroff, District Secretary By

Committees:

Planning Committee Finance Committee

External Affairs Committee Operations Committee Rider Complaint Committee Paratransit Committee

Board of Directors Financing Corporation

SUBJECT: UPDATE ON OUTREACH PROCESSES TO ENCOURAGE

DISADVANTAGED BUSINESS ENTERPRISE (DBE) AND SMALL BUSINESS PARTICIPATION IN DISTRICT PROCUREMENT ACTIVITIES

RECOMMENDED ACTION:

Information Only Briefing Item Recommended Motion Fiscal Impact: N/A

Background/Discussion:

Action Taken by Finance Committee at April 16th Meeting

The Finance Committee sent on to the Board for its consideration the report contained in GC Memo No. 07-097. A presentation was made to the Committee prior to their vote that explained the efforts undertaken by the Purchasing Department to improve outreach to local and small businesses. These efforts include a redesigned webpage for vendor registration which will be implemented when funds become available. In addition, materials relating to small business programs are being obtained from other public agencies in the Bay Area, such as ACTIA, City of Oakland, Port of Oakland,

(2)

Alameda and Contra Costa counties, as well as San Francisco, SamTrans and VTA. Staff is looking to retain a consultant to assist in reviewing these programs to determine which might be the best fit for the District; to annotate Purchasing’s database with small and minority business data; and ultimately, to be able to determine from Purchasing’s system where Purchasing dollars are being spent. At the request of Director Kaplan, the Purchasing Department is researching the cost to advertise District procurements in specific minority communities including African American, Hispanic, Asian and Gay/Lesbian. This includes both print sources and online sources. The Purchasing Department will report back to the Finance Committee, and ultimately to the Board, on these efforts by the third quarter of the calendar year.

Content of GC Memo 07-097 as provided to the Finance Committee

The purpose of this memo is to respond to a request for information as to what the District is doing to outreach to Disadvantaged Business Enterprises (DBEs) and small/local businesses to encourage participation in the District’s procurement activities. What the District can do in terms of outreach depends on what rules apply.

Federal Rules/FTA-Funded Contracts:

As a recipient of Federal Transit Administration (FTA) funding, AC Transit is required to have in place a Disadvantaged Business Enterprise (DBE) program, which is designed to remedy the effects of past discrimination and facilitate the participation of minority and women owned businesses in the District’s FTA funded procurements. Historically, to be eligible for award of a FTA funded contract, a bidder was often required to meet contract specific goals for DBE participation (by proposing DBE subcontractors) or demonstrate good faith efforts to outreach to DBE subcontractors.1

The 2005 Federal 9thCircuit Court of Appeals decision in Western States Paving Co. v.

United States & Washington State Department of Transportation, 407 F3d. 983,

changed the rules for transportation agencies, including the District, located within the jurisdiction of the 9th Circuit. The decision held that Washington State’s DBE program was unconstitutional, as applied, and that the contract specific DBE goals were unsupportable in the absence of current and sufficient evidence of race/gender discrimination in the relevant contracting area.

Following the Western States decision, the federal Department of Transportation (DOT) issued a guidance directive for the recipients of federal funds within the 9thCircuit. As a result of the DOT guidance, the District no longer requires bidders on FTA-funded

1A separate report on recent District payments to DBEs will be coming to the Board in May/June.

Although a number of small/minority businesses have registered on the District’s web page to become vendors, very few are certified DBEs. However, the District is meeting its 3% DBE goal for FY 2006-07.

(3)

contracts to meet DBE contract goals or undertake targeted outreach to DBEs as part of the bid submission process. As noted in previous Board memos, the District is working with other local transit agencies to develop a regional DBE Disparity Study to support its DBE program and goal setting processes.

California Rules:

In 1996, the voters approved Proposition 209, which amended the California Constitution to prohibit the state and its political subdivisions from “discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” (Cal. Const., Art. I, §31.) Federal affirmative action and DBE programs were exempted from the coverage of Proposition 209 where federal funding was involved.

After Proposition 209, it was unclear what measures public agencies could employ to encourage and assist the participation of disadvantaged and minority businesses in their contracting activities. The California Supreme Court provided some clarification in the case of Hi-Voltage Wire Works, Inc. et al. v. City of San Jose, 24 Cal. 4th 537 (2000).

After the passage of Proposition 209, the City of San Jose adopted a program that required contractors bidding on city projects to utilize a specified percentage of minority and women subcontractors or to document efforts to include minority and women subcontractors in their bids.

The City of San Jose solicited bids on a state-funded project for which Hi-Voltage, a general contracting firm, was the low bidder. Because Hi-Voltage intended to utilize entirely its own work force, it failed to comply with either the MBE/WBE outreach or participation requirement and the City rejected its bid. The question before the Court was whether the program violated Proposition 209.

In holding that Proposition 209 prohibited the kind of preferential treatment accorded under the San Jose program, the Court viewed the term “preferential treatment”’ as referring to any kind of treatment favoring one group or individual over another, and not limited to set-asides, quotas, and the like. The Court not only found that the contract participation goals discriminated against non-MBE/WBEs but that the outreach component required contractors to treat MBE/WBE subcontractors more advantageously by providing them notice of bidding opportunities, soliciting their participation, and negotiating for their services, none which must be done for non-MBEs/WBEs.

(4)

However, in his concurring opinion, Chief Justice George made the point that the majority holding does not prohibit all affirmative action programs or “preclude governmental entities in this state from initiating a great variety of pro-active steps …to extend opportunities in …public contracting to all members of the community.” The Chief Justice emphasized that a public contracting program “that imposes an obligation on a prime contractor to engage in reasonable, good faith outreach to all types of subcontractor enterprises in a community…represents another example of a permissible affirmative action outreach program that does not discriminate against or grant preferential treatment on the basis of race or gender”.2

District Outreach Efforts:

In accordance with the present state of federal and state law and as noted earlier, District Purchasing staff no longer require prime contractors to target MBEs/DBEs in soliciting subcontractor bids in District procurements. Instead, Purchasing has shifted its emphasis and increased efforts to reach out to small and disadvantaged business enterprises in its bid notification processes.

A Contract Specialist in the Purchasing Department oversees the District’s DBE program. On a regular basis, the DBE Representative participates in a variety of public outreach meetings with other agencies (Caltrans, BART, VTA, etc.); attends California Unified Certification Program (CUCP) meetings (statewide program that certifies DBEs); attends public Regional Transit Coordinating Council Minority Affairs Committee (RTCC MAC) meetings; and participates in local vendor fairs.

More focused outreach efforts include the recent establishment of a direct link between the District’s procurement web page and the Minority Business and Professional Directory, a combined database of small, minority and women owned business enterprises. This means that any business accessing the Minority Directory looking for procurement opportunities will be directed to AC Transit’s procurement page and its listing of available procurement opportunities. In addition, in an effort to increase competition for construction contracts, the District will be posting constructions bids to the Builder’s Exchange (a Bay Area site that allows vendors in the nine Bay Area counties to access procurement opportunities) and to the Anue Management Group website, a website which targets local/small businesses. The District also coordinates with BART and the City of Oakland in sharing minority, women-owned and small business bidders’ lists.

2

If the District decides in the future to implement a small business program, the program could include imposition of an obligation on bidders to outreach to small businesses, including MBEs/DBEs, in soliciting subcontractors since it would not constitute preferential treatment to a particular group based upon race or gender in violation of Prop 209.

(5)

Relevant Board Actions/Policies:

GM Memo 06-105: FTA Guidance following Western States Decision GM Memo 06-144: Adopt Annual Overall DBE Goal for FY 2006-07 GM Memo 06-191: Ratify Participation in DBE Disparity Study Attachments:

None

Approved by: Kenneth C. Scheidig, General Counsel Prepared by: Carol Babington, Assistant General Counsel Date Prepared: April 3, 2007

References

Related documents

The route would operate from the Sikh Temple via Gurdwara Road, left Terrace Drive, right King Avenue, and right Mission Boulevard to the southbound Line 99 bus stop, where

The fragment can hardly belong to the procession of estates on the 27 Ahmed Fakhry, The Monuments of Sneferu at Dahshur II, The Valley Temple I, The Temple Reliefs (Cairo 1961)

Eukaryotic genome accumulated transposable elements and grew through time with parallel evolution of prokaryotic epigenetic mechanisms, which firstly limiting

SUMMARY: The Federal Transit Administration (FTA) has published final guidance on FTA’s Emergency Relief (ER) Program for states and transit agencies that may be

No entanto, apenas 4 vídeos das cenas dos beijos foram disponibilizados no YouTube, sendo, portanto, destas cenas os comentários analisados por esta pesquisa, tendo em vista

In our research of silk, especially the ribbon silk spun by the brown recluse spider, we revealed novel— and often surprising—insights into silk structure and assembly

The purpose of this study was threefold. First, to understand what are the core elements that Aalto Design Factory is comprised of in order to examine Design Factory concept’s

1. Acquire good basic knowledge in the various sub-specialties of radiology such as chest radiology, neuro-radiology, GI-radiology, uro-radiology, cardio-vascular-