§ 102-436. Contractor discrimination.

(a)

Statement of policy. It is the policy of Fulton County that discrimination against businesses by reason of the race, color, gender or national origin of the ownership of any such business is prohibited. Furthermore, it is the policy of the board that Fulton County and all vendors and contractors doing business with it shall provide to all businesses the opportunity to participate in contracting and procurement paid, in whole or in part, with monetary appropriations of the board without regard to the race, color, gender or national origin of the ownership of any such business. Similarly, it is the policy of Fulton County that the contracting and procurement practices of Fulton County should not implicate Fulton County as a passive participant in discriminatory practices engaged in by private contractors or vendors who seek to obtain contracts with Fulton County.

(b)

Promise of nondiscrimination. In consideration of, and as condition precedent to, the right and privilege to bid on or obtain construction projects and other procurement contracts of Fulton County, each bidder, contractor, or vendor shall be required to submit to the director of the department of purchasing and contract compliance a duly executed and attested promise of nondiscrimination, enforceable at law, which by agreement, affidavit or other written instrument, unless subsequently amended by the board's attorney, shall provide substantially as follows:

"Know all persons by these presents, that I/We,(Name(s)), (Title(s)), (Name of bidder/contractor/vendor) (hereinafter "Company"), in consideration of the privilege to bid on or obtain contracts funded, in whole or in part, by Fulton County, hereby consent, covenant and agree as follows:

(1) No person shall be excluded from participation in, denied the benefit of, or otherwise discriminated against on the basis of race, color, national origin or gender in connection with any bid submitted to Fulton County for the performance of any contract resulting therefrom;

(2) That it is and shall be the policy of this company to provide equal opportunity to all businesses seeking to contract or otherwise interested in contracting with this company without regard to the race, color, gender or national origin of the ownership of this business;

(3) That the promises of nondiscrimination as made and set forth herein shall be continuing in nature and shall remain in full force and effect without interruption;

(4) That the promises of nondiscrimination as made and set forth herein shall be made a part of, and incorporated by reference into, any contract or portion thereof which this company may hereafter obtain; and

(5) That the failure of this company to satisfactorily discharge any of the promises of nondiscrimination as made and set forth herein shall constitute a material breach of contract entitling the board to declare the contract in default and to exercise any and all applicable rights and remedies, including but not limited to cancellation of the contract, termination of the contract, suspension and debarment from future contracting opportunities, and withholding and/or forfeiture of compensation due and owing on a contract.

(6) That the bidder shall provide such information as may be required by the director of purchasing and contract compliance pursuant to this division."

(c)

Required information. Where the director of the department of purchasing and contract compliance has reason to believe that a bidder, contractor or vendor is engaged in unlawful discriminatory conduct, the director of the department of purchasing and contract compliance may request an investigation that is authorized by subsection (b) of this Code section of such person, contractor, its subcontractors and/or suppliers be conducted by the county manager or his/her designee. Such information may include, but is not necessarily limited to the following:

(1)

Documents that show what, if any, good faith efforts the bidder, contractor, or vendor has taken to insure the participation of all businesses without regard to the race, color, gender or national origin of the ownership of any such business for participation in the contract or proposed contract with Fulton County.

(2)

Documents which show that the bidder, contractor, or vendor has attempted to segment the totality of work required under the proposed project or contract into two or more smaller economically feasible units or portions so as to permit participation of all businesses without regard to the race, color, gender or national origin of the ownership of any such business; provided, however, under no circumstances shall a bidder, contractor, or vendor be required to segment work solely for the purpose of utilizing any particular racial or gender group participant as subcontractors where such segmentation is not in accordance with common and accepted industry practices relating to the utilization of other firms or persons as subcontractors.

(3)

Documents that show whether the bidder, contractor, or vendor attended any pre-solicitation meeting and/or pre-bid conference (if such meeting or conference is held) so as to permit interested businesses a meaningful opportunity to market their goods and services to the bidder, contractor, or vendor without regard to the race, color, gender or national origin of the ownership of any such business.

(4)

Documents that show whether the bidder, contractor, or vendor solicited specific individual racial, gender or ethnic businesses whose availability as potential sources of goods or services can be reasonably ascertained. This measure includes the sending of letters or making other personal contacts with specific certified MFBE's including those with whom the bidder, contractor or vendor has contracted in the past as well as other MFBE's with whom the bidder, contractor, or vendor may be unfamiliar, but whose identities can be ascertained from a directory of certified MFBE's maintained by the Director of the department of purchasing and contract compliance.

(5)

Letters or documented personal contacts with any minority or female business enterprise programs, or programs for disadvantaged businesses, as well as private minority trade associations in the Atlanta MSA which programs and associations are known to publicize contracting and procurement opportunities for the benefit of their respective participants and/or members.

(6)

Documents that show whether the bidder, contractor, or vendor advertised in publications of general circulation and/or trade publications and other media owned by, or otherwise focused or marketed to racial minorities, women and any disadvantaged individuals and/or businesses owned and operated by them. The publication or media shall be one that reasonably covers the metropolitan statistical area. The advertisement shall identify and describe the specific subcontracting or other opportunity in reasonable detail.

(7)

Documents that show whether the bidder, contractor, or vendor provided all interested business concerns with adequate information about the plans, specifications and requirements of the project or contract in question.

(8)

Documents that show whether the bidder, contractor, or vendor conducted negotiations with any interested business in good faith without regard to the race, color, gender or national origin of the ownership of any such business and not rejecting them as unqualified or for other reasons without having thoroughly investigated any such business' capabilities or other basis of rejection.

(9)

Documents that show whether the bidder, contractor, or vendor provided reasonable assistance to an otherwise qualified business without regard to the race, color, gender or national origin of the ownership of any such business in need of equipment, supplies, bonding, letters of credit and/or insurance. The bidder, contractor or vendor may waive such bonding, credit and/or insurance as may be ordinarily required by it or provide reasonable assistance to any such business so as to obtain such equipment, supplies, bonding, credit and/or insurance.

(10)

Documents that show whether the bidder, contractor, or vendor provided reasonable technical assistance to any business without regard to the race, color, gender or national origin of the ownership of any such business to ameliorate any deficiencies of technical knowledge or advance skill, where such assistance is undertaken by the bidder, contractor, or vendor for the purpose of facilitating such business' successful participation on a project or contract.

(11)

Documents that show whether the bidder, contractor, or vendor provided equal opportunity to all businesses without regard to the race, color, gender or national origin of the ownership of any such business when replacing nonperforming subcontractors or suppliers. The director of the department of purchasing and contract compliance shall approve all replacements prior to engagement of the substituting firm.

(12)

Documents that show whether the bidder, contractor, or vendor provides a nondiscriminatory worksite. Bidders, contractors and vendors shall ensure and maintain a work environment free of harassment, intimidation and coercion at all construction sites, offices and other facilities at which the bidder's, contractor's or vendor's employees are assigned to work. The contractor shall specifically show that all labor supervisors, superintendents, and other onsite supervisory personnel are aware of and carry out the bidder's, contractor's or vendor's obligation to maintain a nondiscriminatory work environment.

(13)

Documents that show all subcontractors and suppliers that were contacted by the bidder, contractor, or vendor detailing, among other things, their race, gender or ethnicity, discipline, requirements, the manner in which such contact was made, if the supplier or subcontractor submitted a bid or quote, the nature of same and, if rejected, the reasons therefor.

(14)

Documents which show whether the bidder, contractor, or vendor cooperated with the director of the department of contract compliance. Bidders, contractors and vendors shall be required to furnish reports and information sufficient to allow the director of the department of purchasing and contract compliance to determine whether the requirements of this Code section are being met.

(15)

Bidders, contractors and vendors shall provide such other information as the director of the department of purchasing and contract compliance may from time to time reasonably require, whether orally or in writing.

(d)

Notice to bidder, contractor or vendor. When the investigation authorized by the county manager leads to a determination of probable cause to believe that a bidder, contractor or vendor is engaging in discriminatory conduct, the director of purchasing and contract compliance shall give notice of such determination to the bidder, contractor or vendor which notice shall include a rejection of any bid or a determination of breach and a copy of such notice shall be provided to the county manager and the county attorney.

(e)

Hearing. Any bidder, contractor, or vendor who is adversely affected by a determination under this section shall have the right to appeal such adverse determination pursuant to section 102-439 of this Code. Any request for appeal under this section must be made as provided in section 102-439 of this Code and a hearing shall be conducted pursuant to this division.

(f)

Sanctions. Where, after hearing held pursuant to section 102-439 of this Code, the contract compliance hearing officer determines that a bidder, contractor, or vendor has engaged or is engaging in discriminatory practices, the director of the department of purchasing and contract compliance and the county attorney shall determine the appropriate sanctions. In addition to any other sanctions that are authorized by this section, the director of the department of purchasing and contract compliance may impose the sanctions that are set forth in this division; provided, however, that at any time after a determination of discrimination is made pursuant to this Code section, the director of the department of purchasing and contract compliance and the county attorney may negotiate a settlement with the affected bidder, contractor or vendor regarding sanction. Such negotiated sanction may include, but is not necessarily limited to, the sanctions that are enumerated in section 102-438 of this Code or a voluntary EBO Plan that is approved by the director of the department of purchasing and contract compliance.

(Res. No. 13-0052, 1-23-13)

Note— Formerly Code, Pt. II, § 102-469.