14-015 Code Vt. R. 14-010-015-X
Preamble
It is the intention of the Vermont Transportation Board and the Vermont Agency of Transportation to assure that all businesses, regardless of ownership, be allowed equal access through competitive bidding, to all work advertised by the Agency of Transportation. Consistent with this policy, the Agency has traditionally maintained and will continue to maintain an atmosphere of freedom and equality in its bidding and award procedures.
The Board and the Agency emphasize their support of and belief in, the system of free enterprise, but also recognize and endorse national policy addressing the special needs of businesses owned by disadvantaged peoples and by women.
The document attached hereto and referred to as the Women-owned and Disadvantaged Business Enterprise Program, for implementation by the Vermont Agency of Transportation, represents Board policy regarding the equal rights of women-owned and disadvantaged business enterprises (W/DBE) to participate in all contracts financed in whole or in part with public monies. The Program also details the affirmative efforts the Agency will undertake to assure that results are achieved.
To this end, the Vermont Transportation Board and the Agency of Transportation issue the following policy statement affirming its commitment to women-owned and disadvantaged business enterprises.
POLICY STATEMENT
The Vermont Agency of Transportation shall require, through contractual provisions, that all of its contractors, subcontractors, consultants, cities, towns and all other recipients and sub-recipients of federal-aid funds administered by this Agency, ensure that women-owned and disadvantaged business enterprises have the maximum opportunity to participate in the performance of contracts and subcontracts. In this regard, the Vermont Transportation Board endorses the following Women-owned and Disadvantaged Business Enterprise Program, as an affirmative means to fulfill the philosophy that all business, regardless of ownership, be allowed equal freedom and opportunity to compete for all contracts. Furthermore, the Board directs the Agency to take the necessary action to ensure that all contractors, subcontractors, recipients and sub-recipients take reasonable steps to comply with all current state and federal laws and regulations pertaining to women-owned and disadvantaged business enterprises.
...
Chairperson, Vermont Transportation Board
...
Secretary, Vermont Agency of Transportation
INTRODUCTION
Purpose
The purpose of this program is to provide guidelines for the continued refinement, upgrading, and management of the Agency's W/DBE program. These guidelines include procedures to insure that W/DBEs have an equitable opportunity to compete for contracts and subcontracts, and to ascertain the eligibility of W/DBEs and joint ventures involving W/DBEs. A W/DBE Registry is also part of this plan.
Included are the percentage goals for the dollar value of work to be awarded to W/DBEs, the development of procedures requiring that subcontract solicitations of W/DBEs are documented by competitors for contracts, and procedures to insure that prime contracts are awarded to competitors that meet W/DBE goals.
Authority
The preparation of this W/DBE Program is done in accordance with 49 C.F.R., Part 23 and Section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987, and is scheduled for adoption under the State of Vermont's Administrative Procedures Act.
Scope
The requirements of this W/DBE program apply to contracts financed in whole or in part with federal funds. The program is designed to serve all Divisions of the Vermont Agency of Transportation. While the program applies to contracts financed in whole or in part with federal funds, the Vermont Agency of Transportation will actively solicit participation by W/DBEs in all contracts that lend themselves to such participation.
Definitions
Definitions are included in Appendix D.
IMPLEMENTATION RESPONSIBILITIES
The Transportation Board is the policymaking body for transportation issues.
The ultimate responsibility for achieving Women-owned and Disadvantaged Business Enterprise Program objectives rests with the Secretary of Transportation.
Overall Agency responsibility for assuring external contractor compliance with E.E.O., Civil Rights, and W/DBE regulation is delegated by the Secretary of Transportation to the Chief of Contract Administration as Equal Employment and W/DBE Liaison Officer.
The Contract Compliance Officer assists the Chief of Contract Administration in implementing external contractor compliance procedures.
The Specialist assists the Contract Compliance Officer by providing expertise in computerized data management systems, program analysis, policy and procedural advice, and program administration.
GOALS
The methodology for the selection of annual percentage goals for the dollar value of work to be awarded W/DBEs is as follows.
The Agency will establish overall annual percentage goals, and when necessary, specific contract goals which are practical and related to the potential availability and capability of W/DBEs. These goals are intended to direct a justified, proportionate amount of contracting and subcontracting opportunities to disadvantaged and woman-owned small businesses. Projects targeted for goals will be selected in accordance with their capability to accommodate the areas of expertise that W/DBEs certified in Vermont have demonstrated ability to perform and the availability of competing W/DBE firms.
Overall Annual W/DBE Participation Goal
The overall annual goal shall consist of a single goal combining both women-owned and disadvantaged business enterprise participation.
The following factors will be evaluated when determining the Agency's overall goal for value of work to be awarded W/DBEs.
Schedules will be reviewed annually for number of projects proposed for construction, types of projects (e.g. paving, bridge, rail, roadway, airport, etc.) and geographical location.
Previous goal statistics will be analyzed on a yearly basis to determine degree of success in attaining the projected goal. The knowledge will be applied when setting the new projected annual goal.
Geographic concentration of project activities in relation to W/DBE availability will be a major consideration when establishing the overall goal. Work categories of demonstrated W/DBE expertise and capability will also be a consideration when determining the overall goal.
The size and composition of the minority population will be a factor of consideration when establishing the annual W/DBE participation goal.
Information provided by the W/DBE community concerning the availability of W/DBE firms and information received as a result of Public Notices announcing the proposed annual goal will also be considered.
Individual Contract W/DBE Participation Goal
A specific contract goal may be assigned by the Agency as a means to achieve and maintain the overall annual goal. The following factors will be considered, if it is deemed necessary to establish a specific contract goal.
The Supplemental Specifications for W/DBE Utilization is included in Appendix H. The subject of individual contract goals is discussed further in Section V - "W/DBE Utilization".
Procedure for Warning
The Agency will establish an overall W/DBE participation goal in accordance with the methodology contained in this section and submit them to the U.S. Department of Transportation for approval. A public notice will be written detailing the new overall W/DBE annual goal. This public notice will be published in major Vermont newspapers announcing said goal; a sample of this notice is included in Appendix A. A description of the methodology used in selecting the goal will be available for citizen inspection for thirty (30) days following the date of the notice. This material will be made available to the public at:
The Vermont Agency of Transportation
Contract Administration Division
133 State Street
Montpelier, Vermont 05602
Telephone: (802) 828-2641
The public notice will also allow for a public comment period of forty-five (45) days following the date of the notice. Comments will be directed to the above-stated address and be for information purposes only. The overall annual goal will be established on October 1 of each year and remain in effect through September 30 of the following year.
In addition to public notices, contracting organizations representing both minority and non-minority interest, will be solicited by mail concerning the proposed annual W/DBE goal. These responses and other public input will be considered when formulating the goal.
W/DBE PROGRAM PROCEDURES
The Vermont Agency of Transportation will strive to ensure the inclusion, development, and growth of women-owned and disadvantaged business enterprises in all Agency contractual activities with the goal of assimilating women and disadvantaged businesses into the transportation industry through affirmative, logical efforts.
Affirmative Actions
The Agency has or will:
Specific Affirmative Actions Employed
All W/DBE Program personnel have an extensive background in various phases of highway preconstruction and/or as construction Resident Engineers and Inspectors. This knowledge and experience is essential to the understanding of the realities of how W/DBE subcontractor participation works on the project site.
W/DBE UTILIZATION
Solicitation Requirements
Prime contractors are required to solicit W/DBEs and provide physical evidence that such solicitation was done in good faith before subcontractor approval is granted. Binding provision to that effect are included in every federal-aid contract package. The kind of actions that will be considered by the Vermont Agency of Transportation as a good faith effort to meet the W/DBE goal and solicitation requirements shall include, but not be limited to, those outlined in 49 CRF § 23. 45, Appendix A. In addition, these requirements are reiterated in contract document CA-110 and also at the pre-construction conference prior to the commencement of construction. A copy of CA-110, dated September, 1987, is included in Appendix B.
A specific contract W/DBE participation goal is also set for a number of projects; the prime contractor is required to submit with the bid proposal a list of qualified W/DBEs the firm intends to contract with to perform portions of the work, the agreed price to be paid, and the specific contract items to be performed by each W/DBE. A copy of the supplemental specification, CA-160, is included in Appendix H as an illustration of Agency methods of administering contract goals and judging compliance with applicable W/DBE requirements. The specific goal required in this supplemental specification is revised for each applicable contract.
Subrecipients
As a precondition to receiving federal funds extended through the Agency, a subrecipient of Agency federal funds must comply with the requirements of 49 CRF Part 23. The subrecipient may have a federally approved W/DBE program or officially adopt the Agency program.
The W/DBE Liaison Officer will assist subrecipients in meeting W/DBE goals.
Use of W/DBE Banks
At this time, no disadvantaged or women controlled banks operate in Vermont. If such banks do emerge, the Agency will attempt to certify the business as a Women or Disadvantaged Business Enterprise utilizing the same certification process described in Section VI of this program. Upon certification, the bank will be listed in the W/DBE Registry. The Agency will encourage the solicitation and use of such banks by contractors.
W/DBE Registry
The Office of Contract Administration maintains an up-to-date listing of firms in the state and region certified to participate as W/DBEs in the Agency's contracting program. The firms are listed in work-performed categories with address and phone number and identified as a women or disadvantaged business enterprise. The Registry is included in every contract-proposal package for federally-funded projects. A copy of the current Registry is in Appendix J.
Contract Setasides
The use of contract setasides as a means to achieve W/DBE participation goals may be used when good-faith effort solicitation and specific contract W/DBE goals have failed to attain reasonable W/DBE participation in Agency projects. W/DBE setasides shall be used only in cases where at least three W/DBE firms with capabilities consistent with contract requirements exist so as to permit competition.
The Agency may select entire projects or specific items within individual projects for exclusive bidding privileges for W/DBEs.
CERTIFICATION
In order for the Agency to achieve the goals of the W/DBE program, it must insure that participation is limited to only those business entities for which the program is intended -- the bona fide woman-owned or disadvantaged business enterprise. To accomplish this, the Agency has developed a W/DBE certification process.
Certification of W/DBEs is a function of the Agency Prequalification Committee. This Committee, which is comprised of the Chief Engineer and Agency Division Heads, reviews each women-owned or disadvantaged firm applying for access to the Agency W/DBE Program. Their decisions are based on information presented in the Certification Application and recommendations from the Agency W/DBE Supportive Services Consultant and W/DBE Liaison Officer.
Eligibility Application
In December, 1984 the "Disadvantaged/Women Owned Businesses Certification Application" recommended by the FHWA Region I Certification Task Force was adopted for use by the Agency.
All in-state applicants wishing to participate in the W/DBE program must apply for W/DBE certification by completing this application, a copy of which is included in Appendix F of this program. Applicants must also submit the required documents pertaining to their firms as stipulated in the application. These forms will be made available to prospective W/DBE's through:
Vermont Agency of Transportation
Office of Contract Administration
133 State Street
Montpelier, Vermont 05602
802 -828-2641
or through the office of the W/DBE Consultant.
The Compliance Officer and W/DBE Consultant will actively solicit applications from the women and disadvantaged business community. Applicants are encouraged to submit the certification application as soon as possible and not wait until the Agency advertises a project that they wish to bid or give quotes on.
Review and Analysis
Certification applications are received by the Office of the W/DBE Certification Consultant; the Consultant conducts a comprehensive review of each application relevent to required information and content, and then conducts on-site interviews of in-state firms. When the certification application with required attachments and the on-site review form have been completed, the Consultant submits the application package, along with a recommendation relevant to certification, to the Compliance Officer. The Compliance Officer conducts a review of the application information and submits a recommendation, relevant to certification, via the W/DBE Liaison Officer to the Prequalification Committee. The Prequalification Committee has the ultimate authority to grant or deny certification. Appendix C contains information and guidance for qualitative review and analysis of applicants for W/DBE status.
Business Size
All firms applying for either W/DBE status must first meet the small business requirements defined in Section 3 of the Small Business Act referred to in Appendix B to subpart D of 49 CFR, Part 23.
Social and Economic Disadvantaged
Once a firm is determined to be a small business, social and economic disadvantaged status are reviewed. Guidance for determining social and economic disadvantage status is provided under Appendix C to subpart D of 49 CFR, Part 23.
Where ethnic or racial origin of an applicant is in question, recognition of the applicant by the particular ethnic or racial community he or she claims to be a member of should be the prevailing criteria upon which the ethnic or racial status is determined. In this sense, the degree of origin (1/8, 1/16, 1/32, etc.) is not as important as the ethnic or racial community's regard of the person as one of its members. Thus, a person claiming one minority parent or any degree of minority ancestry may or may not be found to be a minority under the regulations. In these cases, inquiry of the particular minority community should be made. Such an inquiry may include documentary evidence from disinterested persons whose ethnic/racial origin is not in question. Some sources would be individual members of the community the applicant claims to be a member of including community organization leaders, bank officials, and local business development organizations. Documentary evidence may include birth certificates, naturalization papers, Indian tribal role registration, statements from disinterested parties, and proof of membership and interaction in recognized racial or ethnic organizations.
Individuals who are not presumed to be socially and economically disadvantaged by virtue of gender or membership in a racial or ethnic group may, nevertheless, be found to be socially and economically disadvantaged on a case-by-case basis. If individuals request that their businesses be certified as eligible disadvantaged businesses, the Agency, as part of its certification process, will make a determination of social and economic disadvantage.
In making determinations of social and economic disadvantage, the Agency will be guided by the following standards:
Other evidence considered in the determination of social and economic disadvantage are:
- Denial of access to business and/or professional schools.
- Denial of equal access to education curricula.
- Exclusion from social and professional organizations.
- Denial of professional or educational honors.
- Social patterns or pressures which have discouraged the individual from pursuing a professional or business education or career.
- Discrimination in hiring promotion and/or professional advancement, pay/wages and fringe benefits, or disciplinary actions in education or employment.
- Unequal access to credit or capital.
- Inability to acquire credit or the necessity or mandate to acquire credit under unfavorable circumstances.
The Agency will make a determination as to whether the applicant firm and its owner(s) are in a more difficult social and economic situation than most firms and owners who are not disadvantaged. The applicant must also demonstrate that the firm is 51 percent owned by socially and economically disadvantaged individual(s) that this (these) individual(s) control the day-to-day management of the firm, and that the firm meets such other requirements for eligibility as a DBE described in this program.
Ownership and Control
The following standards will be used to determine whether a firm is owned and controlled by one or more socially and economically disadvantaged individuals as defined above, and therefore, eligible to be certified as a W/DBE by this Agency.
If at any time the Agency has reason to believe that any person or firm has willfully and knowingly provided incorrect information or made false statements on the disclosure affidavit, it shall refer the matter to the General Counsel of the Agency. The Counsel may initiate debarment procedures in accordance with 41 C.F.R. 1 - 1.604 and 12 - 1.602 and/or refer the matter to the Department of Justice under 18 U.S.C. 1001, as may be deemed appropriate. A copy of the Agency's Policy and Procedures on Debarment is included in Appendix I. The office of the Inspector General, U.S. Department of Transportation, may also be notified if fraudulent information or activity is suspected.
Call | Write |
Inspector General's Hotline | Inspector General |
Toll Free 800-424-9071 | P.O. Box 23178 |
Washington, D.C. Area 755-1855/56 | L'Enfant Plaza Station |
Washington, D.C. 20024-0178 |
Information about the Inspector General's Hotline and a request that fraudulent activity be reported to the Hotline has been included in all federal-aid bid proposals for the period January, 1986 through July, 1986. Referrals to the Hotline may be made anonymously.
The field office contact for Vermont is:
Baltimore Regional Office
Special Agent-in-Charge
FTS: 8-922-6175
Comm: 301-962-6175
Baltimore, MD 21201
After approval of the findings by the Prequalification Committee, the applicant will be notified concerning whether or not the firm is eligible for participation in the W/DBE program.
Certification When A Change of Ownership Has Occurred
As a condition of certification a six month waiting period will be required of firms where majority ownership has been transferred to a woman/minority disadvantaged family member of the firms owner or to a company employee. This waiting period will start at the time the woman/minority disadvantaged person assumes ownership and control of the firm and extended to six months from that date. Women/disadvantaged owners may submit W/DBE certification applications to the Agency during the six month waiting period.
This requirement may be waived in special circumstances such as when the death of a male non-minority owner transfers ownership and control of a firm to a woman/disadvantaged family member, a male non-minority owner retires, or legitimate buy-outs by non-relatives or employees.
This policy applies only to Vermont based firms applying for W/DBE certification through this Agency.
Recertification
W/DBE firms appearing in the W/DBE Registry are notified by mail on an annual basis that they must be recertified. The firm must submit an update identifying whether a change in ownership has occurred since the last certification. A copy of this correspondence and update are included in Appendix E.
Certification Reciprocity With Other State And Small Business Administration 8 (a) Program
The W/DBE certification status of a firm's home state department of transportation (DOT), or similar entity that uses the certification requirements of 49 CFR, Part 23 will be honored by this Agency. Comprehensive certification reviews are not normally conducted on firms based outside Vermont. The out-of-state applicant is asked to supply verification that their certification is current with their home state DOT, and then recommended for certification to the Prequalification Committee, based on this policy of reciprocity.
By the same token, W/DBE firms who are decertified, or removed from the list of certified firms by their home state DOT, are also removed from this Agency's list. Status of an out-of-state W/DBE during the pendency of an appeal or third party complaint is explained in the section describing those actions.
Owner/Operator Certification
An abbreviated certification application and review procedure for W/DBE equipment owner-operators was instituted to allow the most expedient access to the W/DBE program by this type of small business.
Removal from W/DBE Registry by Administrative Action
In certain instances a certified firm may be removed from the Agency W/DBE Registry by the Agency W/DBE Liaison Officer. Such cause for this administrative action will include, but not be limited to:
Decertification
W/DBEs may be decertified and excluded from participation in the W/DBE Program for the following reasons:
When it has been determined by the Agency that a W/DBE no longer meets the requirements for certification, the Prequalification Committee will notify the W/DBE by certified mail, return receipt, of the contemplated decertification, briefly describe the reasons why decertification is contemplated, and offer the firm or individual an opportunity to respond to reasons for decertification stated therein. The Prequalification Committee shall meet with the W/DBE to hear and discuss the arguments concerning decertification. The Prequalification Committee shall then issue a ruling.
Challenges to Firms Certified as Woman-owned or Disadvantaged Businesses
Any third party may challenge the socially and economically disadvantaged status of any individual (except an individual who has current 8(a) certification) presumed to be socially and economically disadvantaged if that individual is an owner of a firm certified by or seeking certification from the Agency as a W/DBE. The actual ownership and control of a firm certified as a W/DBE or the W/DBE's compliance with the requirements of 49 CFR 23 may also be challenged by any third party.
In making the determination of the challenged individual's status as a socially and economically disadvantaged individual the standards set forth in Appendix C to subpart D of 49 CFR, Part 23 shall be used.
The challenging party shall submit in writing to the Agency's Prequalification Committee all information available justifying his/her determination that whether the challenged party is not in fact socially and economically disadvantaged, or the ownership and control of the firm is questionable. Based on the information provided by the challenging party, the Prequalification Committee shall determine whether there is reason to believe that the challenge has adequate validity to merit further action.
If the Prequalification Committee determines that the challenge does have adequate validity following procedure shall be taken:
During the pendency of a challenge, the certification of that challenged party as a socially and economically disadvantaged individual or the ownership and control of the firm previously used as a basis for certifying the firm as a W/DBE shall remain in effect until a final determination has been made.
If the Prequalification Committee determines that there is not reason to believe that the challenge is valid both parties will be so informed by certified mail/return receipt stating a reason for the determination. An appeal process similar to the one described below may be utilized by the challenging party.
If the Prequalification Committee determines that there is reason to believe that the challenge is valid, both parties will be so informed in writing by certified mail/return receipt stating a reason for the determination. The challenged party may also appeal the determination as described below.
All written notifications made during the pendency of a third party challenge procedure will also be by certified mail/return receipt to the U.S. Department of Transportation, Office of Civil Rights via the FHWA - Vermont Division Administrator.
Appeal Procedures
Any firm which believes that it has been wrongly denied certification as a W/DBE, been decertified as a W/DBE, or lost its certification as a W/DBE by challenge may file an appeal with the Prequalification Committee. Any individual who challenges the socially and economically disadvantaged status of an owner or the actual ownership of a firm and has that challenge denied may also appeal. The appeal shall be in writing, signed and dated, and contain reasons for the appeal. The appeal must be filed no later than 15 days after the date of denial, removal, or continuation of certification. After review of presented reasons in the appeal, the Prequalification Committee may reverse its action, or if it determines the appealed action is still in order, the appeal will be forwarded to the Secretary.
The Secretary will appoint a Hearing Officer who will schedule a formal hearing on the appeal. The hearing will be convened not less than 20 days nor more than 30 days after the appeal is filed. All parties involved will be notified by certified mail/return receipt of the hearing time, date and place, and their responsibility to provide information relevant to their position.
Based on the information presented at the hearing, the Hearing Officer will, within 20 days after the hearing, present a written report to the Secretary. The report shall contain findings of fact, conclusions, and recommendations.
The Secretary shall review the hearing evidence and the Hearing Officer's report and issue a decision concerning the matter. Written notification by certified mail/return receipt of the decision shall be sent to all parties involved within 20 days after the Secretary receives the recommendation from the Hearing Officer.
If the applicant is not satisfied with the decision of the Secretary, the decision may, in accordance with 49 CFR Part 23.55 dated March 31, 1980, be appealed directly to the U.S. Department of Transportation.
The Secretary may omit the appeal process within the Agency and advise the applicant to appeal directly to the U.S. Department of Transportation by writing to:
The Secretary of Transportation
Washington, DC 20590
Attention: Office of Civil Rights S-30
The status of a firm remains the same as it was prior to any certification, decertification, appeal or challenge procedures during the pendency of these procedures.
In cases of decertification, certification denial, challenges and appeals provisions have been added to allow the Agency to make a referral for legal action if it appears the matter would have potential for initiation of a debarment action or criminal prosecution. This referral may be either to the Vermont Attorney General's office or the US DOT Office of Civil Rights via the FHWA-Vermont Division Administrator.
Pre-Award Audit
Following bid opening on projects designated for specific goals, the Compliance Officer performs a pre-award audit/review of the low bidder's success in meeting the requirements set forth in the W/DBE Supplemental Specification Appendix H.
The following criteria is evaluated prior to awarding these contracts:
The award of the contract is based on the apparent low bidder's responsiveness to the requirements of the specification and evidence revealed through this audit that the W/DBE participation scheduled in the proposal will meet relative Agency and Federal requirements.
Following completion of the pre-award audit, the Compliance Officer forwards a report to the Civil Rights/Labor project file for the project and notifies the Specification Engineer of the results of the audit. Award of the contract does not proceed until all pre-award W/DBE participation requirements have been satisfied.
Project Monitoring
In addition to regular monitoring of W/DBE participation on the project site by the Resident Engineer field visits are conducted by Agency Compliance Section personnel and the results of such visit reported to the Compliance Officer.
Twelve (12) Comprehensive Equal Employment Opportunity/Affirmative Action Compliance Reviews are conducted annually by Compliance Section personnel. These reviews include a full report of the contractor's efforts to subcontract portions of the project to available W/DBEs, and an audit of the participaton of W/DBEs on the project.
The W/DBE Supportive Services Consultant is responsible for inspecting the participation of W/DBEs named to fulfill participation requirements on specific goaled projects. The Consultant is responsible for reviewing the Civil Rights Project files and interviewing project Resident Engineers to determine the date(s) the W/DBE will be working on the project. In addition to observing the progress of the W/DBE subcontractor, interviewing W/DBE employees and supervisors, determining the ownership of equipment being used by the W/DBE subcontractor, the Consultant provides a written recommendation to the Compliance Officer relevant to the commercially useful function being served by the W/DBE on that project.
Verification of Payments To W/DBEs
In accordance with the W/DBE Utilization Supplemental Specification the Compliance Officer requires that prime contractors on W/DBE specific goaled projects submit verification of payments made to the W/DBE(s) on their project. This requirement was implemented to further document that prime contractors are actually achieving the level of W/DBE participation originally obligated in their contract. Generally, cancelled checks are the only means of payment verification accepted.
Final Audit Procedure
Upon notification from the Construction Engineer that a final inspection has been scheduled for a project containing specific goals, the Compliance Officer conducts a final review of W/DBE payment verifications submitted by the prime contractor to determine if W/DBE participation met contract requirements.
The Compliance Officer may at his/her option, notify the Resident Engineer by memo if contract W/DBE requirements have not been met and request that the matter be resolved prior to final payment; or he/she may recommend to the Chief of Contract Administration that progress payments be suspended immediately pending resolution of the non-compliance matter. Progress or final payments may be suspended by the Chief of Contract Administration by a memo to the Chief of Financial Mangement via the Chief Engineer, and Director of Administration.
Sanctions & Suspensions, Debarment, Voluntary Exclusions
The Agency will impose sanctions in accordance with contract supplemental specifications W/DBE Utilization (CA-160) and W/DBE Policy - Contract Requirements (CA-110) against contractors failing to comply with the socio-economic obligations required in Agency bidding procedures and contract execution. Copies of these documents are contained in Appendix B and H.
Likewise, when adequate evidence exists, sufficient to support the reasonable belief that commission of fraud or criminal offense was a factor in obtaining or performing on a public contract, appropriate legal action will be pursued through the Vermont Attorney General's office or the U. S. Department of Justice.
In addition, the Agency's Policy and Procedures on Debarment apply to both W/DBE's and non-W/DBE's alike where it is demonstrated that government funds may not be properly utilized or the State's interests properly safeguarded. A copy of this document is included in Appendix I.
PUBLIC NOTICE
VERMONT AGENCY OF TRANSPORTATION
Disadvantaged Business Enterprise Overall Annual Goals
For Fiscal Year October 1, 1987 through September 30, 1988
Pursuant to U.S. Department of Transportation regulations contained in 49 Code of Federal Regulations, Part 23, all State transportation agencies receiving Department of Transportation financial assistance must establish overall percentage goals for the dollar value of work to be awarded disadvantaged and women-owned businesses. This action has been deemed necessary in order to provide these businesses the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds. The Vermont Agency of Transportation is a recipient of U.S. Department of Transportation financial assistance and hereby proposes the following goals in accordance with these regulations:
Fiscal Year 1988 Overall Goal for Disadvantaged Business | |
Enterprise Participation - FHWA Funded Programs | 13% |
Fiscal Year 1988 Overall Annual Goal for Disadvantaged | |
Business Enterprise Participation - UMTA Funded Programs | 10% |
A description of the methodology used in establishing these goal values will be available for inspection during normal business hours at the following address:
Vermont Agency of Transportation
Contract Administration
133 State Street
Montpelier, Vermont 05602
Telephone: (802) 828-2641
Comments pertaining to these goals will be accepted at the above referenced address for a period of 45 days from the publishing date of this notice.
These goals will take effect at the conclusion of the comment period and after consideration of public opinions.
Susan C. Crampton
Secretary
Agency of Transportation
WOMEN/DISADVANTAGED BUSINESS ENTERPRISE POLICY CONTRACT REQUIREMENTS
Factors to Consider in Certification and Verification
The following pages identify situations which may indicate the need for closer scrutiny during a review of the documents and an on-site visit. We recognize that many of the following situations exist in legitimate D/WBE firms.
Women Business Enterprises
or
Factors to Consider in Joint Venture *
or
Loan from non-minority person;
or
Stock issued but never purchased.
* These situations may be present in a recognized mentor/protege relationship which may be encouraged by the State (see Attachment C) to develop DBEs.
FACTORS TO CONSIDER IN A CORPORATE SPIN-OFF *
* These situations may be present where a recognized mentor/protege relationship has been encouraged by the State (see Attachment C) to develop DBEs.
DBE CERTIFICATION/VERIFICATION PROCEDURE
Outline of Major Components
Socially and economically disadvantaged individuals are American citizens or lawfully admitted permanent residents who are:
Some States have discovered that it is useful to incorporate the resources of a D/WBE Advisory Committee into their verification and certification procedures. The composition of the Committee varies according to the preferences of the individual States.
- Certified Income Statements
- Federal tax returns for most recent 3 years
- Birth certificates
- Naturalization papers
- Indian Tribal role registration
- Recognition of applicant in the particular minority community as a minority through sworn and notarized statements from bona fide members of the community who are clearly disinterested parties.
- Proof of membership and interaction in recognized minority organizations.
- Articles of Incorporation, By-laws, Partnership Agreements.
- Copies of issued stock certificates.
- Copies of all shareholder agreements including voting trusts, employment contracts and other agreements between owners and company.
- Minutes of first and most recent Board of Directors meeting.
- Contributions of capital, titles to equipment or other proof of property ownership.
- Federal Corporate Tax returns for last 3 years. Schedule E Compensation to Officers.
- Minutes of all Board of Directors meetings. (Note election of officers and delegations of authority.)
- Copies of all shareholder agreements including voting trusts, employment contracts, and other agreements between owners and company.
- Copies of any third party agreements.
- Examples of documents that would demonstrate management control. For example: copies of contracts, loan agreements, insurance policies, performance bonds, etc., signed by the minority/female owners.
- Resume of work experience of applicant, non-minority owners, and officers.
Please Note: An audit of the firm's books and records would not normally be required to obtain certification. The firms should be required to submit documentation to support each area of eligibility determined necessary by the State.
DEFINITION OF TERMS
ACT
The Surface Transportation and Uniform Relocation Assistance Act of 1987.
AGENCY
The Vermont Agency of Transportation
AFFIRMATIVE ACTION
Means taking specific steps to eliminate discrimination and its effects, to insure nondiscriminatory results and practices in furture [future] contracts and programs funded by U.S. DOT.
COMPLIANCE
The satisfactory condition existing when a recipient or sub-recipient has effectively implemented all of the W/DBE requirements or can demonstrate that every good faith effort has been made toward achieving that end.
CONTRACT
Means a mutually binding legal relationship or any modification thereof obligating the seller to furnish supplies or services, including construction, and the buyer to pay for them. For purposes of the W/DBE Program, a lease is a contract.
HEARING OFFICER
Means an individual who is appointed to hear appeals or denials of certification and to report the findings of fact, conclusions, and recommendations to the Secretary.
JOINT VENTURE
Means an association of two or more businesses to carry out a single business enterprise for profit for which purpose they combine their property, capital, efforts, skills, and knowledge.
NONCOMPLIANCE
Means the condition existing when a recipient or contractor has failed to implement the requirements of the W/DBE program and has failed to demonstrate good faith effort toward achieving that end.
RECIPIENT
Means any entity, public or private, to whom U.S. DOT financial assistance is extended, directly or through another recipient for any program.
SECRETARY
The Secretary of the Vermont Agency of Transportation.
SUBCONTRACT
Means a contract between a party to an original contract and a third party to provide a specified part of the work or materials required in the original contract.
SUBRECIPIENT
Means any entity, public or private, to whom U.S. DOT financial assistance is extended, through the Agency, for any program.
W/DBE CERTIFICATION APPLICATION
Means an application for certification under the Agency's W/DBE Program which includes the applicant's assurance that any changes which may affect eligibility will be reported to the Agency.
VERMONT AGENCY OF TRANSPORTATION
SUPPLEMENTAL SPECIFICATION
Women/Disadvantaged Business Enterprise Utilization
Section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act (STURAA) of 1987 mandates that not less than ten (10) percent of all revenues to be appropriated under the Act's provisions shall be expended with disadvantaged businesses. The Act also provides that women shall be presumed to be socially and economically disadvantaged individuals for the purposes of this subsection. The Vermont Agency of Transpotation (VAOT) has established a combined Women-owned and Disadvantaged Business Enterprise (W/DBE) participation rate of 13% for the Agency's 1988 overall annual goal. The VAOT is a recipient of funds acquired under this Act and is implementing the following bidding procedure to assure that all such firms are offered the maximum opportunity to participate in the performance of subcontracts financed in whole or in part with federal funds.
As used in this supplemental specification, the following terms shall have the following meanings:
The specific contract W/DBE goal for this project shall be the percentage specified in the Project Special Provisions. This percentage shall reflect the actual dollar amount to be paid to the W/DBE(s) by the Contractor.
Each bidder, as part of its proposal, must submit the following documents:
In the event that the Bidder shows intent to either not achieve the specified W/DBE goal, or partially achieve the specified W/DBE goal, the Agency's evaluation of the bidder's good faith efforts, as required by Section D. 2. of this specification, will focus only on those efforts made prior to bid opening. No good faith efforts conducted after the bid opening will be considered adequate to fulfill these bid submission requirements. Required bid submission information provided on the Women/Disadvantaged Business Enterprise Participation Schedule and the Women/Disadvantaged Business Enterprise Unavailability Certification will be used in determining the lowest responsive bidder. Failure to provide Contract W/DBE participation information on these forms will result in the bid being declared informal.
The Vermont Agency of Transportation reserves the right to reject all bids. The award of the contract will be to the lowest bidder responsive to the following criteria:
Any substitution of named W/DBE firms must be approved by the Vermont Agency of Transportation. If the Contractor alters the list of W/DBE firms scheduled to participate in the contract and/or the specific items that the W/DBE was scheduled to perform the Contractor must be able to demonstrate that the listed W/DBE is unable to perform because of default or over-extension on other jobs, or provide other similar justification. There must be a solid basis for change. It is not intended that a Contractor's ability to negotiate a more advantageous contract with another subcontractor be considered a valid basis for change.
If a listed W/DBE subcontractor is unable, following award to the low Bidder, to perform the items listed in the participation schedule, the Contractor must replace the listed W/DBE with another W/DBE subcontract of equal value or provide the Agency with documentation of good faith solicitation efforts as detailed in Part A 6(a) through (j) of this Supplemental Specification and explain why a substitute W/DBE could not be located. When a Contractor fulfills this requirement a waiver will be issued by the Agency releasing the contractor from the W/DBE participation obligation.
Contractors are required to provide the Agency with copies of Project work invoice payments to W/DBE subcontractors. These invoices shall be submitted to the Agency as payments are made and will be used to determine the final amount of project W/DBE particiation, and whether Contract sanctions for non compliance will be considered.
Each Contractor or subcontractor who fails to carry out the requirements set forth in these Specifications will be subject to a breach of contract and, after giving notification to the Federal Highway Administration, the Agency may terminate the Contract or subcontract or initiate any other remedy which it considers to be appropriate.
The standard penalty for failing to comply with this supplemental specification for W/DBE utilization will be as follows:
An amount of money equal to the amount in which the Contractor fails to achieve the specific contract goal may be deducted from the final estimate and/or biweekly progress payments as the penalty for non-compliance with this specification.
WOMEN-OWNED AND DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION SCHEDULE
Any substitution of the named W/DBE firms must be approved by the Vermont Agency of Transportation. This approval is necessary not only to assure that contract goals are met, but to preserve the integrity of the W/DBE program.
...
Name of Prime Bidder
...
Project Name and Number
Name of W/DBE | Address | Item Name (detail if partial Item) | Item No. | Unit Price | Agreed Price |
... | ... | ... | ... | ... | . ... |
Percentage of contract obligated to W/DBE(s) .....%
(must be completed)
WOMEN OWNED AND DISADVANTAGED BUSINESS ENTERPRISE UNAVAILABILITY CERTIFICATION
I, .....(Name), .....(Title) of .... (Name of Prime Bidder), certify that on .....(Date)
....(Project Name and Number).
W/DBE Contractor | Work Items Sought | Reason for Unavailability |
To the best of my knowledge and belief, said Women/Disadvantaged Business Enterprises were unavailable for work on this project, or unable to prepare a bid.
Signature: ....
Date: ....
(If the low Bidder fails to attain the required W/DBE participation on the project, he or she will be required to submit documentation verifying the Bidder's good faith efforts and the actual documentation illustrating the unavailability of the W/DBE firms listed in this certificate, in accordance with Section D.2.
VERMONT AGENCY OF TRANSPORTATION
POLICY
Mentor-Protege Relationships
The mentor-protege concept allows prime contractors to enter into formal relationships with a Woman-owned and/or Disadvantaged Business Enterprise for the purpose of providing training and development to these firms. These relationships may be established through innovative variations to standard prime subcontractor agreements and joint ventures. The Agency encourages this concept in that it has significant potential to create an environment which is favorable to the formation and healthy growth of small woman-owned and/or disadvantaged firms. Furthermore, it will help prime contractors to fulfill W/DBE project goals.
The following criteria will be considered when reviewing mentor-protege situations:
GENERAL AGREEMENT COVERING MENTOR PROTEGE RELATIONS
THIS AGREEMENT entered into this .... day of ....., 198.... by and between .....of .... (hereinafter Mentor) and .... of .... (hereinafter Protege) in accordance with the requirements for increased Disadvantaged Business Enterprises (DBE) participation of the Surface Transportation Assistance Act of (STAA) of 1982.
This agreement is intended to cover the general relationship between the parties in order to insure compliance with the STAA and to establish guidelines for mentor/protege relations and is executed in conjunction with a Contract for Services dated .....
The parties agree that both contracts shall be construed so as to conform to the guidelines set forth in the Technical Advisory: Disadvantaged Business Enterprise Development from the office of the Secretary of Transportation dated September 23, 1983 by Ray Barnhart, a copy of which is attached as Exhibit "A" and made a part hereof.
In order to assure compliance with the Technical Advisory the parties agree as follows:
...
Mentor/prime contractor
...
Protege/sub-contractor
VERMONT AGENCY OF TRANSPORTATION
POLICY
Crediting of W/DBE Participation Goals to Prime Contractors Subcontracting to W/DBE Equipment Rental Firms
Use of W/DBE Steel Erectors To Meet Specific Contract Goals For W/DBE
One hundred percent W/DBE participation credit will be allowed on steel erection subcontracts when the W/DBE subcontractor provides total control of all responsibilities associated with the structural steel item. This will include actual purchase of the steel, erection, insurances, labor and payrolls.
In situations where W/DBE subcontracts fail to provide all services, and assume all responsibilities, the invoice purchase price of the structural steel will be deducted and not credited towards meeting the project W/DBE goal. Only the actual cost of erecting the steel will be credited to the prime towards achieving the W/DBE goal.
Any monies paid back to the prime or its affiliates by the W/DBE subcontractor will be deducted from meeting the contract W/DBE participation goal.
Commercially Useful Function Guidelines
The Agency can only credit transactions with W/DBEs which have performed a commercially useful function in relation to the contract.
A W/DBE is considered to perform a commercially useful function when it is responsible for execution of a distinct element of the work of a contract and carrying out its responsibilities by actually performing, managing and supervising the work involved. To determine whether a W/DBE is performing a commercially useful function, the Agency shall evaluate the amount of work subcontracted, normal industry practices and other relevant factors. Set forth below are guidelines for commercially useful function:
Commercially Useful Function (CUF), False Statements or Misrepresentation, Decertification and Prosecution
In instances where it is determined that an Agency-certified W/DBE Subcontractor fails to perform a commercially useful function as detailed in the Agency "Policy on CUF Guidelines" the prime contractor will not be credited with the participation of such W/DBEs.
A W/DBE found not to be performing a CUF will have its certification reviewed for reconsideration of the subjective decisions which are normally made in the certification process. This may result in decertification of the W/DBE or a conditional continuance of certification.
In instances where fraud is suspected, decertification procedures will be initiated if the fraud is related to the firm's certification eligibility. Firms can, of course, be prosecuted or debarred when they are found to have engaged in fraudulent activities, either by presenting false or misleading information or documentation during the certification process, or by misrepresenting in any manner the participation of the W/DBE on an Agency project. The Agency may also impose sanctions such as monetary sanctions or disqualification when goals, which have become conditions of the contract, are not met and good faith efforts are not made to meet them.
This policy, the actions detailed above, and the Agency's Policy and Procedures on Debarment apply to W/DBEs and non-W/DBEs alike.
W/DBE PROGRAM
VERMONT AGENCY OF TRANSPORTATION
POLICY
Crediting of W/DBE Participation Goal to Prime Contractors using W/DBE Trucking Firms
( $ /day, $ /hr., $ /wk., etc.)
VERMONT AGENCY OF TRANSPORTATION
POLICY
Crediting of Flagging Towards Fulfilling W/DBE Participation Goals
The value of flagging services will be credited towards fulfilling contract W/DBE participation goals only if it is part of a W/DBE's subcontract for all project traffic control activities including the provision of signs, warning devices, flagging and appropriate day to day supervision.
Flagging will not be credited when the W/DBE subcontractor merely brokers flagpersons to the prime under a hiring/payroll arrangement. Such arrangements do not constitute a commercially useful function and are not considered as industry practice.
VERMONT AGENCY OF TRANSPORTATION
POLICY
Crediting of W/DBE Participation Goals to Prime Contractors Subcontracting Concrete Median Barrier (C.M.B.).
One hundred percent W/DBE participation credit will be allowed on subcontracts for C.M.B. when the W/DBE subcontractor provides total control of all responsibilities for the item. This includes the actual purchase and installation of the barrier.
If C.M.B. is used for the item, Temporary Traffic Barrier 100% participation credit will be allowed when the W/DBE subcontractor provides total control of all responsibilities for the item. This includes the actual purchase and/or rental, the initial installation, any moving and resetting on project, and the final removal of the barrier.
In situations where the prime contractor subcontracts a portion of the total project quantity of Temporary C.M.B. to a W/DBE, participation credit will be limited to no more than the prime contractors unit bid price for the item. If the barrier remains on the project to be moved and reset by the prime's workforce and a reasonable rental fee is paid to the W/DBE subcontractor, 20% W/DBE participation credit will be allowed.
This Policy sets forth rules for the debarment of and other measures against contracting firms or affiliates where it is demonstrated that government funds may not be properly utilized or the State's interest would not be safeguarded. These measures shall be used to protect the public interest and are not intended to be sanctions, penalties, or forms of punishment.
Suspension may include any affiliate of a participant. A determination to include an affiliate in a particular suspension must be made on a case-by-case basis. Among the factors to be considered in making this determination are the affiliate's knowledge of or participation in the conduct which is the basis for the suspension.
Immediately after the suspension decision, a suspended person shall be furnished notice of the suspension by the Secretary. The notice shall include the specific acts or omissions on which the suspension is based, the provisions of Section 3.7 relative to period of suspension, and a statement that the participant does have a right to a hearing and may be represented by counsel, if desired.
Within forty-five (45) days after receipt of the proposed order and findings from the hearing officer or committee under Section 3. 6, the Board shall issue an order relative to the suspension. At the Board's option, it may adopt the proposed findings and order of the hearing officer or committee if the findings are supported by the evidence and the conclusions are consistent with these regulations; it may remand the matter to the same or a different hearing officer for rehearing on specific points, which shall be specified, it may modify the decision, or it may order a de novo hearing. Notice of the Board's determination shall be sent to all parties.
Grounds for a Debarment. The Secretary may debar any participant or affiliate upon adequate evidence for any of the following causes:
Debarment may include any affiliate of a participant. A determination to include an affiliate in any particular debarment shall be made on a case-by-case basis. Among the factors to be considered in making this determination are the affiliate's knowledge of or participation in the conduct which is the basis for the debarment. Where debarment of an affiliate is proposed, the affiliate shall be afforded the rights of notice and hearing provided in this Policy.
At any time after an order of debarment by the Secretary, the participant may petition the Board for review of the Secretary's order. The Board may, in its discretion: appoint a hearing officer to conduct a hearing and issue proposed findings and conclusions to the Board; or conduct a hearing before the full Board, or a committee thereof. In the case of a debarment based upon conviction under Section 3. 9(a), the Board shall only consider the length of the debarment.
The Board, on its own motion, may order a debarment hearing if the Secretary has not acted. Such a hearing will be in accordance with Section 3.13. In setting the length of debarment, the Board shall consider, among other reasons, the criteria set out at Section 3.11(b) (1-7).
Agreement for voluntary exclusion. When in the best interest of the State, and provided that allegations of fraud or criminal activities are not involved, the Secretary, instead of taking administrative action, may enter into an agreement with the participant providing for voluntary exclusion from Agency programs for a specified period of time. Agreements for voluntary exclusion are entered into for the benefit of both parties and do not constitute administrative suspension or debarment measures. However, violations of an agreement for voluntary exclusion may result in administrative action under this Policy.
14-015 Code Vt. R. 14-010-015-X