West Congress (Radam/St. Elmo) Water & WW Pipeline Renewal

CITY OF AUSTIN
C C C 2-9A
ITY ODE HAPTER
C
ONSTRUCTION
MBE/WBE P P
ROCUREMENT ROGRAM
Solicitation Name:
Solicitation Number:
Issue Date:
2-9A Construction Compliance Plan Packet 1 Revised August 2019

Table of Contents
MBE/WBE GOALS ................................................................................................ 3
OVERVIEW ............................................................................................................ 3
MBE/WBE COMPLIANCE PLAN INSTRUCTIONS ...................................... 4
Section I Project Identification and Goals .............................................................................................................................................................. 4
Section II Bidder Information..................................................................................................................................................................................... 4
Section III MBE/WBE Compliance Plan Summary ................................................................................................................................................ 4
Section IV Disclosure of MBE and WBE Subcontractors...................................................................................................................................... 4
Section V Disclosure of Non-Certified Subcontractors ......................................................................................................................................... 6
Section VI Disclosure of Second-Level Subcontractors .......................................................................................................................................... 6
Section VII Disclosure of Primary and Alternate Trucking Subcontractors ........................................................................................................ 6
Section VIII MBE/WBE Compliance Plan Checklist ................................................................................................................................................ 7
GOOD FAITH EFFORTS INSTRUCTIONS ..................................................... 8
Contacting Potential MBE/WBE Subcontractors .......................................................................................................................................................... 8
Good Faith Efforts Review ................................................................................................................................................................................................. 9
POST-AWARD INSTRUCTIONS ...................................................................... 11
Confirmation Letters .......................................................................................................................................................................................................... 11
Post-Award Monitoring ..................................................................................................................................................................................................... 11
Payment Verification ..................................................................................................................................................................................... 11
Change Order/Contract Amendments ...................................................................................................................................................... 11
Progressive Sanctions .................................................................................................................................................................................... 12
APPENDIX A: MBE/WBE COMPLIANCE PLAN ........................................ 13
APPENDIX B: LETTER TO POTENTIAL SUBCONTRACTORS .............. 20
APPENDIX C: CONFIRMATION LETTER................................................... 21
APPENDIX D: AVAILABILITY LIST ..................................................................
2-9A Construction Compliance Plan Packet 2 REV. APRIL 2020

MBE/WBE GOALS
Annual/Project Annual/Project
Participation Goals Participation Subgoals
MBE % African American %
OR
WBE % Hispanic %
Combined MBE/WBE % Asian/Native American %
WBE %
OVERVIEW
This document should be read in conjunction with the City of Austin's Minority-owned and Women-owned Business
Enterprise Procurement Program Ordinance for Construction (Chapter 2-9A of the Austin City Code) and the Small
and Minority Business Resources Department (SMBR) Rules. The definitions contained in Chapter 2-9A apply to
this document. The City Code and Rules are amended from time to time and the Bidder is responsible for ensuring
they have the most up to date version. The City Code and Rules are incorporated into this document by reference.
Copies of Chapter 2-9A and SMBR Rules may be obtained online at www.austintexas.gov/smbrdocuments or 811
Barton Springs Rd, 8th Floor, Suite 805 Austin, Texas 78704
Firms or individuals submitting responses to this Invitation for Bid agree to abide by the City's Minority-owned and
Women-owned Business Enterprise (MBE/WBE) Procurement Program and Rules. The City's MBE/WBE
Program is intended (1) to promote and encourage MBEs and WBEs to participate in business opportunities with
the City of Austin; (2) to afford MBEs and WBEs an equal opportunity to compete for work on City contracts; and
(3)to encourage contractors to provide subcontracting opportunities to certified MBEs and WBEs by soliciting such
Firm for subcontracting opportunities. The City of Austin and its contractors shall not discriminate on the basis of
race, color, national origin, disability, or gender in the award and performance of contracts.
The City encourages Bidders to achieve the MBE/WBE participation goals and subgoals for this contract. However,
Bidders may comply with the City Code and Rules without achieving the participation goals so long as they make
and document Good Faith Efforts that would allow MBE and WBE participation per Section 2-9A-21 of the City
Code and Section 9.1 of the Rules. Bidders that do not meet the project's goals and subgoals are subject to Good
Faith Efforts review.
Prior to the due date and time specified in the City's solicitation documents, all Bidders (including those Firms
certified as MBE/WBEs) shall submit: (1) an MBE/WBE Compliance Plan (Appendix A) and (2) if it is anticipated
the project goals will not be met, all appropriate documentation to demonstrate Good Faith Efforts to meet the
project goals. Any questions regarding preparation of the MBE/WBE Compliance Plan should be directed to SMBR
at SMBRComplianceDocuments@austintexas.gov. Such contact is not a violation of the Anti-Lobbying Ordinance.
The City has implemented Anti-Lobbying Ordinance (Chapter 2-7 of the Austin City Code). Under Chapter 2-7,
there is a "no-contact" period from the date the City issues a solicitation until the contract is executed. During the
"no-contact" period, a person responding to a City solicitation can speak only to the contract's authorized contact
person regarding their solicitation response. Chapter 2-7 allows certain exceptions; for instance, a person responding
to a City solicitation may speak to SMBR regarding this MBE/WBE Compliance Plan. See the full language of the
City Code or solicitation documents for further details.
2-9A Construction MBE/WBE Compliance Plan Packet 3 REV. APRIL 2020

MBE/WBE COMPLIANCE PLAN INSTRUCTIONS
(See Appendix A)
If the MBE/WBE Compliance Plan and Good Faith Efforts documentation are not submitted prior to the
due date specified in the solicitation documents, the bid will be deemed non-responsive and not be
accepted for consideration.
SMBR may request written clarification of items listed on the MBE/WBE Compliance Plan. However, there will be
no further opportunity for the Bidder to augment the MBE/WBE participation originally listed in the MBE/WBE
Compliance Plan or to demonstrate Good Faith Efforts that were not made prior to the submission of the MBE/WBE
Compliance Plan. Changes to the MBE/WBE Compliance Plan are permitted only after contract execution and only
with prior written approval of SMBR.
Please type or clearly print all information, use "none" or "N/A" where appropriate, and sign and date the
MBE/WBE Compliance Plan as indicated. MBE/WBE Compliance Plans not complying with the MBE/WBE
Compliance Plan Instructions shall be rejected as non-responsive. Submissions not utilizing the forms
provided with the solicitation may render the submission nonresponsive or noncompliant.
Section I Project Identification and Goals
This section includes the pre-printed Project Name, Project/Solicitation Number, and goals and/or subgoals. The
Bidder does not need to fill in any information under Section I.
Section II Bidder Information
The Bidder should complete this section with its information and sign in the space provided. The portion of Section
II marked as "Reserved for City of Austin SMBR Only" should be left blank.
Section III MBE/WBE Compliance Plan Summary
This section is a summary of subcontractor participation for this Bid. Bidder should complete Sections IV-VII,
described below, before attempting to complete Section III. After completing Sections IV-VII, calculate the
percentage of MBE/WBE participation for each goal and enter the information in the blanks provided. Because
Section III is a summary, if there are any inconsistencies between Sections IV-VII and Section III, the calculations
contained in Sections IV-VII will prevail. If the Bidder indicates that they do not anticipate meeting the goals with
certified MBE/WBE firms, then the Bidder shall submit documentation detailing their Good Faith Efforts to meet
the established MBE/WBE goals. The MBE/WBE Compliance Plan will be reviewed and approved by the Small
and Minority Business Resources Department.
Section IV Disclosure of MBE and WBE Subcontractors
Please list all certified MBE/WBEs subcontractors using the legal name under which they are registered to do
business with the City of Austin and the value of the work they will be performing themselves except for
subcontractor(s) that will be performing the trucking or hauling scope of work (see Section VII below). Do not
include the value of work that the MBE/WBE's subcontractors will be subcontracting to second-level
subcontractors. By listing certified MBE and WBE Firms on the MBE/WBE Compliance Plan, the Bidder indicates
that both parties acknowledge the price and scope of work and that they are prepared to contract for that price and
scope if the City awards the project to the Bidder. Unit price subcontracts are acceptable if appropriate to the type
of work being performed. A Letter of Intent (LOI) does not replace a binding contract between a prime contractor
and a subcontractor.
2-9A Construction MBE/WBE Compliance Plan Packet 4 REV. APRIL 2020

Before completing Section IV of the MBE/WBE Compliance Plan, please read the following instructions regarding
how to count MBE/WBE participation:
(A) Only the value of the work actually performed by the MBE/WBE shall be counted toward the goals. This
includes:
(1) work performed by the MBE/WBE's own forces;
(2) the cost of supplies, materials, or equipment purchased, leased, or otherwise obtained by the
MBE/WBE for the work of the contract (except that supplies, materials, and equipment purchased
or leased from the prime contractor or its affiliate may not be counted toward the goal); and
(3) fees or commissions charged by an MBE/WBE for providing a bona fide service, such as
professional, technical, consultant, or managerial services, or for providing bonds or insurance
specifically required for the performance of a contract, provided the fee is reasonable and not
excessive as compared with fees customarily allowed for similar services.
(B) When a Bidder purchases supplies, materials, or equipment from an MBE/WBE, the cost of those
supplies, materials, or equipment shall be counted toward the goals as follows:
(1) If the supplies, materials, or equipment are obtained from an MBE/WBE that is a Manufacturer or
Regular Dealer, 100 percent of the payment for the supplies, materials, or equipment shall be
counted toward the goals.
(2) If the supplies, materials, or equipment are obtained from an MBE/WBE that is neither a
Manufacturer nor a Regular Dealer, the cost of the materials and supplies themselves shall not be
counted toward the goals. However, fees or commissions charged for assistance in the
procurement of the materials and supplies, or fees or transportation charges for the delivery of
materials or supplies required on a job site, may be counted toward the goals if the payment of such
fees is a customary industry practice and such fees are reasonable and not excessive as compared
with fees customarily allowed for similar services.
(C) When an MBE/WBE subcontractor listed on the MBE/WBE Compliance Plan subcontracts part of the
work of its contract to another Firm, the value of that second-level subcontracted work may not be
counted toward the goals based on the initial subcontractor's MBE/WBE certification. Please see Section
VI for an explanation of how to count the value of second-level subcontractors' work.
(D) A Firm owned by a minority woman may be certified as both an MBE and a WBE (dual certified). On a
single contract, the value of the work performed by a dual certified subcontractor may not be counted
toward both the MBE and the WBE goals. The Bidder must decide whether to designate the dual certified
subcontractor as an MBE or a WBE in the MBE/WBE Compliance Plan for the purpose of meeting the
goals set for that contract. That designation may not be changed for the duration of the contract.
(E) When an MBE/WBE performs as a participant in a certified Joint Venture, only the portion of the
contract value that is the result of the distinct, clearly defined portion of the work that the MBE/WBE
performs with its own forces and for which it is at risk shall be counted towards the project goals. For
more specific information regarding requirements and evaluations of certified MBE/WBE Joint Ventures,
please see the City's MBE/WBE Procurement Program Rules or contact SMBR's Certification Division.
(F) Only expenditures to an MBE/WBE contractor that is performing a Commercially Useful Function shall
be counted toward the project goals. If SMBR makes an initial determination that an MBE/WBE is not
2-9A Construction MBE/WBE Compliance Plan Packet 5 REV. APRIL 2020

performing a Commercially Useful Function given the type of work involved and normal industry
practices, the MBE/WBE may present evidence to rebut this presumption.
(G) To be counted toward project goals, MBE/WBEs must be certified by SMBR prior to the due date to
submit the MBE/WBE Compliance Plan as specified in the City's solicitation documents. A Firm that is
certified as an MBE/WBE at the time that the MBE/WBE Compliance Plan is filed may cease to be a
certified Firm before the contract is completed. Only the value of the work performed by such a Firm
while it is certified may be counted toward the project goals.
Section V Disclosure of Non-Certified Subcontractors
Please list all known non-certified subcontractors, using the legal name under which they are registered to do business
with the City of Austin, to be used in the performance of this contract. If Bidder will not use any non-certified
Firms, please write "N/A" in the first box on this page.
The scopes of work indicated in Section V will be considered subcontracting opportunities for MBEs and WBEs,
unless it is demonstrated that certified MBEs or WBEs are unavailable or do not possess the requirements in the
technical portion of the solicitation to perform the work involved. If Bidder did not meet the project goals, Bidder
must explain in the space provided why MBEs/WBEs were not used as subcontractors and submit documentation
for the stated reason if applicable. If Bidder did meet the project goals, please indicate "Goals Met" in the space
provided.
Section VI Disclosure of Second-Level Subcontractors
Please complete this section if Bidders knows that one or more of Bidder's subcontractors will subcontract part of
the work of their contracts to second-level subcontractors. In the last line of each entry box, please write the name
of the first-level subcontractor that will be subcontracting work to the second-level subcontractor. Identify second-
level subcontractors by the legal name under which they will be registered to do business with the City. The first-
level subcontractor should be listed in Section IV or Section V. If Bidder is not aware of any second-level
subcontractors, please write "N/A" in the first box on this page.
As discussed in Section IV above, when an MBE/WBE subcontractor subcontracts part of the work of its contract
to another Firm, the value of that second-level subcontractor work may not be counted toward the goals based on
the initial subcontractor's MBE/WBE certification. The value of the second-level subcontractor work may be
counted toward the project goals only based on the second-level subcontractor's own MBE/WBE certification, if
any. Work that an MBE/WBE subcontracts to a non-certified firm does not count toward the goals. Work that an
MBE/WBE subcontractor contracts to another certified firm shall not be counted twice towards the goal.
Section VII Disclosure of Primary and Alternate Trucking Subcontractors
Please complete this section if the project includes trucking or hauling services as a scope of work. Each time this
scope of work is required on the project, Bidder must contact the Firm listed as the primary trucking subcontractor
in this section. If the primary trucking subcontractor is not available or cannot perform the entirety of the work at
the time required, Bidder may contact the alternate trucking subcontractors in the order that Bidder lists them in this
section. Identify primary and alternate trucking subcontractors by the legal name under which they will be registered
to do business with the City. Bidder must contact the primary trucking subcontractor at least 24 hours before the
work is to be performed. Bidder will not need to submit a Request for Change to use the alternate trucking
subcontractors if Bidder contacted the primary trucking subcontractor first and then proceeded to contact the
alternates in the order Bidder listed them on this section.
2-9A Construction MBE/WBE Compliance Plan Packet 6 REV. APRIL 2020

For purposes of meeting the project goals or subgoals at the MBE/WBE Compliance Plan stage, the entire value of
this scope of work shall be assigned to the primary trucking subcontractor. At contract closeout, MBE/WBE
participation will be counted based on the actual usage of the primary and alternate trucking subcontractors.
Section VIII MBE/WBE Compliance Plan Checklist
Please complete the MBE/WBE Compliance Plan Checklist with the information requested if the stated project goal(s)
are not met.
2-9A Construction MBE/WBE Compliance Plan Packet 7 REV. APRIL 2020

GOOD FAITH EFFORTS INSTRUCTIONS
(See Appendices B and D)
The Bidder has a responsibility to make a portion of the work available to MBE/WBE subcontractors so as to
facilitate meeting the goals or subgoals. If the Bidder cannot achieve the goals or subgoals, documentation of the
Bidder's Good Faith Efforts to achieve the goals or subgoals must be submitted at the same time as the MBE/WBE
Compliance Plan. The SMBR Director will review the documentation provided and determine if the Bidder made
sufficient Good Faith Efforts. That there may be some additional costs involved in soliciting and using MBEs and
WBEs is not a sufficient reason for a Bidder's failure to meet the goals and subgoals, as long as such costs are
reasonable. However, a Bidder is not required to accept a higher quote from a subcontractor in order to meet a goal
or subgoal.
Contacting Potential MBE/WBE Subcontractors
The City has determined the scopes of work for this project and provided an Availability List of all the MBE and
WBE firms certified to perform those scopes. The Availability List (Appendix D) is included with the solicitation
documents and has two sections: Vendors Within the Significant Local Business Presence (SLBP) Area and Vendors Outside
the Significant Local Business Presence (SLBP) Area. As part of Good Faith Efforts, Bidders must contact all firms listed
in the Vendors Within the SLBP Area section. Please note that every firm on the Availability List - outside the SLBP
- is City-certified as an MBE or WBE for purposes of meeting the project goals, and Bidders are encouraged to
contact all the firms. If a Bidder identifies an additional scope of work for this project not identified in the
solicitation, the Bidder must request from SMBR an Availability List for that scope of work and contact all firms, if
any, on such list. The SMBR Director determines whether the Bidder has made sufficient Good Faith Efforts if
goals or subgoals are not met.
The City neither warrants the capacity or availability of any Firm, nor does the City guarantee the
performance of any Firm indicated on the availability list.
The availability list is sorted in numerical sequence by National Institute of Governmental Purchasing (NIGP)
Commodity Code. It includes all certified MBE/WBE vendors for the scopes of work identified by the City as being
potentially applicable to this project. However, the availability list is not a comprehensive identification of all areas
of potential subcontracting opportunities. If a Bidder identifies one or more work areas that are appropriate
subcontracting opportunities that not included on the availability list, the Bidder shall contact SMBR to request the
availability list for MBE and WBE Firms in those areas. Requests for supplemental availability lists will be evaluated
as a part of the Bidder's Good Faith Efforts to meet the goals.
If the Bidder believes any of the work areas on the availability list are not applicable to the project's scope of work
or if the Bidder believes that the lists are inaccurate, the Bidder shall notify the authorized contact person of the
concern immediately and prior to submission of the response to the solicitation. All Bidders will be notified in
writing of any inaccuracy by addendum to the solicitation. Concerns about a particular MBEs/WBE's certification
status may be addressed to SMBR at SMBRComplianceDocuments@austintexas.gov. If the Bidder wants to use a
certified subcontractor that does not appear on this list, Bidder may request from SMBR or visit
www.austintexas.gov/certified_vendors_directory proof of certification and the specific work areas for which the
subcontractor has been certified.
Appendix B provides a format for collecting required information from the subcontractors on the Availability List.
The information must be obtained at least seven (7) business days prior to the submission of the MBE/WBE
Compliance Plan; alternate formats may be acceptable as long as they gather the same required information. Included
with the solicitation documents is an alphabetized list containing the names and addresses of the MBE/WBE Firms
listed on the Appendix D. This list is in label format and is designed to facilitate the printing of mailing labels.
2-9A Construction MBE/WBE Compliance Plan Packet 8 REV. APRIL 2020

The following codes are used on the availability lists:
F Female M Male
AA/B African American H Hispanic
A/NA Asian/Native American W/C Caucasian
A firm's two-digit location code (e.g., SL or
LOC AU Austin
TX)
SL Significant Local Business Presence (SLBP) TX Outside SLBP
A firm certified as a Minority-owned A firm certified as a Woman-owned Business
MBE WBE
Business Enterprise Enterprise
A firm certified as both a Minority-owned & A firm certified as both a Woman-owned &
MWB WMB
Woman-owned Business Enterprise Minority-owned Business Enterprise
A firm certified as a Minority-owned,
A firm certified as a Woman-owned, Minority-
MWDB Woman-owned, and Disadvantaged Business WMDB
owned, and Disadvantaged Business Enterprise
Enterprise
Good Faith Efforts Review
If goals are not met, SMBR will examine the MBE/WBE Compliance Plan and the Good Faith Efforts documentation
submitted with the MBE/WBE Compliance Plan to ensure that the Bidder made Good Faith Efforts to meet the
project goals or subgoals. In determining whether the Bidder has made Good Faith Efforts, SMBR will consider, at
a minimum, the Bidder's efforts to do the following:
(A) Solicit certified MBE/WBE subcontractors with a Significant Local Business Presence (SLBP) and request a
response from those interested subcontractors who believe they have the capability to perform the work of
the contract through at least two reasonable, available, and verifiable means. The Bidder must solicit this
interest more than seven (7) business days prior to submission of the MBE/WBE Compliance Plan to allow
sufficient time for the MBEs or WBEs to respond. (The date bids/proposals are due to the City should not
be included in the seven-day solicitation criteria.) The Bidder must state a specific and verifiable reason for
not contacting each certified Firm with a significant local business presence.
(B) Provide interested MBEs/WBEs with adequate information about the plans, specifications, and
requirements of the contract, including addenda, in a timely manner, to assist them in responding and
submitting a proposal.
(C) Negotiate in good faith with interested MBEs/WBEs that have submitted bids/proposals to the Bidder. An
MBE/WBE that has submitted a bid to a Bidder but has not been contacted within five (5) business days of
submission of the bid may contact SMBR to request a meeting with the Bidder. Evidence of good faith
negotiation includes the names, addresses, and telephone numbers of MBEs/WBEs that were considered; a
description of the information provided regarding the plans and specifications for the work selected for
subcontracting; and evidence as to why additional agreements could not be reached for MBEs/WBEs to
perform the work. Bid shopping is prohibited.
(D) Select portions of the work to be performed by MBEs/WBEs in order to increase the likelihood that the
MBE/WBE goals or subgoals will be met. This includes, where appropriate, breaking out contract work
items into economically feasible units to facilitate MBE/WBE participation, even when the Bidder might
otherwise prefer to perform these work items with its own forces.
2-9A Construction MBE/WBE Compliance Plan Packet 9 REV. APRIL 2020

(E) Publish solicitation notice in a local publication (i.e. newspaper, trade association publication, or via
electronic/social media).
(F) Use the services of available community organizations; minority persons/women consultants' or groups in
the applicable field for the type of work described in this solicitation; local, state, and federal minority
persons/women business assistance offices; and other organizations as allowed on a case-by-case basis to
provide assistance in the recruitment and placement of MBEs/WBEs.
(G) Seek guidance from SMBR on any questions regarding compliance with this section.
The following factors may also be considered by SMBR in determining compliance through good faith efforts;
however, they are not intended to be a mandatory checklist, nor are they intended to be exclusive or exhaustive:
(A) Whether the Bidder made efforts to assist interested MBEs/WBEs in obtaining bonding, lines of credit, or
insurance as required by the City or consultant.
(B) Whether the Bidder made efforts to assist interested MBEs/WBEs in obtaining necessary equipment,
supplies, materials, or related assistance or services.
In assessing minimum good faith efforts, SMBR may consider whether the Bidder sought assistance from SMBR on
any questions related to compliance with this section. In addition, SMBR may also consider the performance of
other Bidders successfully meeting the goals.
The ability or desire of a Bidder to perform the work of a contract with its own organization does not relieve the
Bidder of the responsibility to make Good Faith Efforts.
Bidders may reject MBE/WBEs as unqualified only following thorough investigation of their capabilities. The
MBE/WBE's membership or lack of membership in specific groups, organizations, or associations, and political or
social affiliations (for example union or non-union employee status), are not legitimate causes for the rejection or
non-solicitation of bids/proposals in the Bidder's efforts to meet the project goals or subgoals.
At a minimum, the following should be submitted to support Good Faith Effort documentation
(documentation is not limited to this list):
Fax logs, emails, and/or copies of documents sent to firms within the SLBP area
Copies of written correspondence to certified firms (include names, addresses, and other identifying
information)
Phone logs with responses (Phone contacts, alone, will not be sufficient.)
Lists and copies of letters sent by mail, hand delivered, or e-mailed
Breakdown of negotiations made with certified firms
Copies of advertisements with local newspapers, trade associations, Chambers of Commerce and/or any
other public media
Other communications regarding contacts with trade associations and Chambers of Commerce
The following additional Good Faith Efforts factors may also be considered:
Copies of emails or phone logs regarding assistance in bonding, lines of credit, or insurance (as required
by City or Consultant)
Copies of emails or phone logs regarding assistance in obtaining equipment, supplies, materials, or
services
Copies of all proposals received in response to Bidder contacting other Firms
2-9A Construction MBE/WBE Compliance Plan Packet 10 REV. APRIL 2020