§ 102-447.8. Means to ensure bidders and contractors make good faith efforts to meet SBE contract goals.

The county shall request documentation of good faith efforts from bidders at the time of bid.

(1)

For all contracts for which SBE contract goals have been established, the bidder shall be required to submit SBE participation information to Fulton County. The award of the contract will be conditioned upon satisfaction of the requirements established by the county. The bidder shall submit, with its bid submission, the following information:

(a)

The name, address, certification number and certifying agency of the SBE firm(s) that will participate in the contract;

(b)

The description of the work each named SBE will perform and associated NIGP code(s); and

(c)

The dollar amount of participation by each named SBE firm.

(2)

If the SBE participation submitted by the bidder does not meet the SBE contract goals, the bidder must submit with its bid submission evidence demonstrating that "good faith efforts" were made to meet the goals. The county will review documents submitted at the time of bid and make its determination of good faith efforts based on those submitted documents. Additional submissions will not be permitted. To determine sufficient "good faith efforts" to meet the SBE contract goal, a bidder/proposer shall document the steps it has taken to obtain SBE participation, which may include, but are not limited to, the following types of actions that are not meant to be mandatory or exhaustive:

(a)

Attendance at a pre-bid meeting, if any, scheduled by the county to inform SBEs of subcontracting opportunities under a given solicitation;

(b)

Advertisement in general circulation media, trade association publications, the county website and other media for at least 15 days before bids or proposals are due;

(c)

Written notification to SBEs that their interest in the contract is solicited;

(d)

Efforts made to select portions of the work proposed to be performed by SBEs in order to increase the likelihood of achieving the stated goal;

(e)

Good faith efforts to negotiate with SBEs for specific subcontracts, including at a minimum:

i.

The names, addresses and telephone numbers of SBEs that were contacted;

ii.

A description of the information provided to SBEs regarding the plans and specifications for portions of the work to be performed;

iii.

A statement of why additional agreements with SBE were not reached;

iv.

Concerning each SBE, the SBE contacted but rejected as unqualified and the reasons for the bidder's conclusion; and

v.

Efforts made to assist the SBEs contacted that needed assistance in obtaining bonding or insurance required by the competitor or the county.

(f)

To determine whether a bidder that has failed to meet SBE goals may be awarded the contract, the county will determine whether the efforts the bidder made to obtain SBE participation were "good faith efforts." Efforts that are merely pro forma are not "good faith efforts" to meet the goals. In order to award a contract to a bidder that has failed to meet SBE contract goals, DPCC will determine whether the bidder made good faith efforts to meet the county's SBE goals.

(g)

A bidder making a good faith effort would consider a number of factors in negotiating with subcontractors, including SBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using SBEs is not in itself sufficient reason for a bidder's failure to meet the contract SBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts.

(h)

Prime contractors are not, however, required to accept higher quotes from SBEs if the price difference is excessive or unreasonable. In determining whether a bidder has made good faith efforts, DPCC will take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, DPCC may reasonably raise the question of whether, with additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal but meets or exceeds the average SBE participation obtained by other bidders, the county may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts.

(i)

Bidders that fail to meet SBE goals and fail to demonstrate "good faith efforts" shall be deemed non-responsive to the county's SBE requirements and shall not be eligible to be awarded the contract.

(j)

To ensure that all obligations under contracts awarded to SBEs are met, the county shall review the contractor's SBE involvement efforts during the performance of the contract. The contractor shall bring to the attention of the county any situation in which regularly scheduled progress payments are not made to SBE subcontractors.

The county may also request documentation of good faith efforts from contractors after award of a contract with SBE goals. Specifically, in the event that a subcontractor becomes decertified as an SBE after contract award, the subcontractor will be required to notify the prime contractor of decertification and the prime contractor shall either replace the decertified SBE subcontractor by an equivalent SBE certified firm or provide documentation of good faith efforts.

(Res. No. 16-0864, App. A(M), 10-5-16)