§ 2-9A-4. DEFINITIONS.

For the purpose of this chapter the following definitions shall apply. With the exception of specifically defined terms set forth herein, all words shall have their ordinary and usual meanings. In the event of conflict, the specific definition set out herein shall presumptively, but not conclusively prevail over the ordinary and usual meanings.

(1)

ADVERSE DECISION. An Adverse Decision includes a notice of violation, denial of certification, decertification, sanction or similar action taken by SMBR, a Contract Awarding Authority, or other City official under the Program with respect to a Firm or Business Enterprise.

(2)

AFFILIATE. A person or entity is an Affiliate of another person or entity that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person or entity. In determining affiliation, the City shall consider all appropriate factors, including common ownership, common management, and contractual relationships. Affiliates must be considered together in determining whether a firm is a MBE/WBE.

(3)

ANNUAL PARTICIPATION GOALS. The targeted levels established by the city council for the annual aggregate participation of MBEs and WBEs in City contracts with respect to Construction procurement, as set forth in Section 2-9A-3 ( Establishment of Program ), and as may be amended from time to time.

(4)

AUSTIN METROPOLITAN STATISTICAL AREA. The specific area defined by the Census Bureau, which is presently limited to Travis, Williamson, Hays, Bastrop and Caldwell Counties.

(5)

BID. A complete, properly signed response to a competitive bidding Solicitation issued by the City, submitted on the prescribed forms required by the relevant Contract Awarding Authority, to perform or provide labor, materials, equipment, supplies or services to or for the City for a stated price.

(6)

BIDDER. A person, Firm or Business Enterprise that submits a Bid in response to a Solicitation. A Bidder may be represented by an agent if such agent provides evidence demonstrating the agent's authority.

(7)

BROKER. A person or entity that fills orders by purchasing or receiving supplies from a third party supplier rather than out of its own existing inventory, and provides no Commercially Useful Function other than acting as a conduit between his or her supplier and his or her customer.

(8)

BUSINESS ENTERPRISE or FIRM. A corporation, partnership, sole proprietorship, Joint Venture, joint stock company, professional association or any other legal entity, that is properly licensed and/or otherwise authorized to do business in the State of Texas.

(9)

CITY and CITY LIMITS. The City of Austin, Texas and its full purpose annexed boundaries, as established by Chapter 90, page 634, Special Laws of Texas, 1909, 31st Legislature, as the same may be amended from time to time and as extended by ordinances of the City of Austin enacted subsequent thereto.

(10)

CITY MANAGER. The person serving as the chief administrative and executive officer of the City, as appointed and serving under Art. V, Section 1 of the Austin City Charter (or any successor provision) and includes his or her designee.

(11)

CITY MARKETPLACE. The geographic and procurement areas in which the City contracts on an annual basis.

(12)

COMMERCIALLY USEFUL FUNCTION. A Firm is responsible for the execution of a distinct element of the work of the Contract and carries out its responsibilities by actually performing, managing, and supervising the work involved, or fulfilling its responsibilities as Joint Venturer. To determine whether a Firm is performing a Commercially Useful Function, the City will evaluate the amount of work subcontracted, normal industry practices and other relevant factors. In determining whether a MBE/WBE Firm is performing a Commercially Useful Function, the following considerations shall be counted:

(a)

A MBE/WBE performs a Commercially Useful Function when it is responsible for the work of the Contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a Commercially Useful Function, the MBE/WBE must also be responsible, with respect to materials and supplies used on the Contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. The determination that a MBE/WBE is performing a Commercially Useful Function will be determined by the amount of work subcontracted, normal industry practices, whether the amount the Firm is to be paid under the Contract is commensurate with the work it is actually performing, and other relevant factors.

(b)

A MBE/WBE does not perform a Commercially Useful Function if its role is limited to that of an extra participant in a transaction, Contract, or project through which funds are passed in order to obtain the appearance of MBE/WBE participation.

(c)

Generally, if a MBE/WBE does not perform or exercise responsibility for at least 30 percent of the total cost of its Contract with its own work force, or the MBE/WBE subcontracts a greater portion of the work of a Contract than would be expected on the basis of normal industry practice for the type of work involved, it is not performing a Commercially Useful Function.

(13)

COMPLIANCE PLAN. The plan submitted with the Bid/Proposal detailing the Bidder/Proposer's achievement of the Goals or Subgoals or its Good Faith Efforts to meet the Goals or Subgoals for all elements of the Solicitation, as defined in Section 2-9A-21 ( Pre-Award Compliance Procedures ), subject to the rules established by the relevant Contract Awarding Authority. A Compliance Plan must be submitted with a Bid/Proposal for any City project for which Goals or Subgoals have been established.

(14)

CONSTRUCTION. The construction, repair, rehabilitation, alteration, conversion or extension of buildings, parks, utilities, streets or other improvements or alterations to real property.

(15)

CONSULTANT. A person or Business Enterprise that submits a Proposal to provide professional or nonprofessional services to the City by Contract, and any person who supplies or provides professional or nonprofessional services to the City by Contract.

(16)

CONTRACT. Includes the entire and integrated binding legal agreement between the City and a Contractor or Consultant to provide or procure labor, materials, equipment, supplies and services to, for or on behalf of the City. Except as otherwise specifically defined in this section, a Contract does not include:

(a)

awards made by the City with federal/state grant or City general fund monies to a non-profit entity where the City offers assistance, guidance, or supervision on a project or program and the recipient of the grant award uses the grant monies to provide services to the community;

(b)

sales transactions where the City sells its personal or real property;

(c)

a loan transaction where the City is acting as a debtor or a creditor;

(d)

lease and franchise agreements;

(e)

agreements to use City real property;

(f)

gifts of materials, equipment, supplies or services to the City;

(g)

interlocal or intergovernmental agreements between or among political subdivisions; or

(h)

procurements of commodities or services that are sole source by virtue of intellectual property rights or other exclusive rights and for which there are no other subcontracting opportunities.

It is the intent of this Program to complement any federally funded contracts subject to a federally promulgated affirmative action program. In these instances, the City shall administer this Program to complement the federal program.

(17)

CONTRACT AWARDING AUTHORITY. The City official or department authorized to enter into contracts on behalf of the City.

(18)

CONTRACTOR. Any person or Business Enterprise that submits a Bid or Proposal to provide labor, goods or services to the City by Contract for profit, and any person who supplies or provides labor, goods or services to the City by Contract for profit.

(19)

DBE or DISADVANTAGED BUSINESS ENTERPRISE. Defined as provided in 49 Code of Federal Regulation Part 26 or other applicable federal regulations.

(20)

DIRECTOR. The City official who heads the department which manages the Program authorized by this chapter, and the Director's successor, and the successor agency or department.

(21)

ECONOMIC DISADVANTAGE. With respect to an individual owner of a Business Enterprise or Firm, Economic Disadvantage means personal net worth equal to or less than $1,300,000, which figure shall be (a) indexed annually, beginning January 1, 2009, for the South Region Consumer Price Index (CPI-U), published by the U.S. Department of Labor, Bureau of Labor Standards and (b) exclusive of the individual owner's equity in (i) a Business Enterprise or Firm seeking certification under this Program, and (ii) the personal residence of the individual owner of such Business Enterprise or Firm.

(22)

EXPERTISE. Verifiable and demonstrable skills, knowledge or ability to perform in the field of endeavor in which certification is sought by the Business Enterprise as defined by normal industry practices, including licensure where required.

(23)

FRONT. A business which purports to be a MBE/WBE but that is actually owned, controlled or managed in a manner that is inconsistent with the requirements for certification set forth in this chapter.

(24)

GOALS. The goals or Subgoals established for a particular Solicitation or Contract, as set forth in Section 2-9A-3 ( Establishment of Program ) and calculated as authorized in Section 2-9A-19 (Establishment of MBE/WBE Participation Levels for Individual Contracts in Construction).

(25)

GOOD FAITH EFFORTS. The actions undertaken by a Bidder, Contractor, or Proposer to achieve a MBE/WBE Goal with respect to a Contract. Minimum standards are as set forth in Section 2-9A-21 ( Pre-Award Compliance Procedures ).

(26)

JOINT VENTURE. An association of two or more persons, or any combination of types of Business Enterprises and persons numbering two or more, proposing to perform a single Contract, in which each Joint Venture partner contributes property, capital, efforts, and skill and/or knowledge, and in which the MBE/WBE is responsible for a distinct, clearly-defined portion of the work of the Contract and whose share in the capital contribution, control, management, risks and profits of the Joint Venture is equal to its ownership interest. A Joint Venture seeking certification pursuant to the Program must have an agreement in writing specifying the terms and conditions of the relationships between the partners and their relationship, risks, and responsibilities under the Contract.

(27)

LEASE. A long-term agreement, contract, or instrument conveying property to another at the will of either lessor or lessee for compensation, not on an ad hoc or contract-by-contract basis.

(28)

LIKE-KIND. For purposes of substitutions of previously designated MBEs and/or WBEs, a MBE for a MBE, if MBE and WBE Goals are used in a Solicitation; a member of a racial or ethnic group for a member of the same racial or ethnic group, if racial or ethnic Subgoals are used in the Solicitation; or a WBE for a WBE.

(29)

MBE/WBE AND SMALL BUSINESS ADVISORY COMMITTEE. The Minority- Owned and Women-Owned Business Enterprise and Small Business Enterprise Procurement Program Advisory Committee appointed by the city council to serve those functions described in Section 2-9A-13 ( MBE/WBE and Small Business Advisory Committee ). It is composed as set forth in Chapter 2-1 ( City Boards ) of the Code.

(30)

MANUFACTURER. A Firm that operates or maintains a factory or establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the Contract and of the general character described by the specifications.

(31)

MINORITY-OWNED BUSINESS ENTERPRISE or MBE. A business including, without being limited to, a sole proprietorship, partnership, corporation, Joint Venture, limited liability company, or any other business or professional entity:

(a)

which is at least 51 percent owned by one or more Minority Persons, or in the case of a publicly owned business, at least 51 percent of all classes of the stock of which is owned by one or more Minority Persons;

(b)

whose management, policies, major decisions and daily business operations are independently controlled by one or more such Minority Persons;

(c)

which performs a Commercially Useful Function;

(d)

the size of which does not exceed the size limits established by the United States Small Business Administration;

(e)

doing business in the State of Texas for at least three months prior to the date of application for certification;

(f)

which is certified by the City; and

(g)

which is Economically Disadvantaged.

(32)

MINORITY PERSON. A person is a Minority Person, and is rebuttably presumed to be Socially Disadvantaged, if he or she is a citizen of the United States or a lawfully admitted resident alien and a member of one of the following groups:

(a)

Blacks or African-Americans (persons whose origins are in one of the Black racial groups of Africa);

(b)

Hispanics (persons whose origins are in Mexico, Central or South America, Spain or any of the Spanish-speaking islands of the Caribbean, regardless of race);

(c)

Native Americans (persons whose origins are in any of the original peoples of North America);

(d)

Asian-Americans (persons whose origins are in any of the original peoples of the Far East, Southeast Asia, the islands of the Pacific or the Northern Marianas, or the Indian Subcontinent);

(e)

other groups, or other individuals, found by the Director pursuant to rule, to be Socially and Economically Disadvantaged, and to have suffered actual social and economic discrimination and decreased opportunities to compete in the City's Marketplace or to do business with the City; and

(f)

for purposes of contracts funded by other sources, groups found to be eligible for the designation of DBE by such governmental sources.

(33)

OWNED, MANAGED AND INDEPENDENTLY CONTROLLED. A Business Enterprise or Firm is Owned, Managed and Independently Controlled if one or more Minority Persons or Women who own the requisite interest in or assets of a business applying for certification possess the customary incidents of such ownership, including an equivalent interest in profit and loss, and have contributed an equivalent percentage of capital or equipment and Expertise to the business. Ownership shall be measured as though not subject to the community property interest of a spouse, if both spouses certify in writing that the nonparticipating spouse relinquishes control over his or her community property interest in the subject business (but by doing so is not required to transfer ownership interest or to characterize the property as the separate property of the spouse). The ownership and control of the Firm shall be real, substantial, and continuing and shall go beyond the pro forma ownership of the Firm as reflected in its ownership documents.

(34)

PROGRAM. The Minority-Owned and Women-Owned Business Enterprise Procurement Program as authorized by this chapter.

(35)

PROPOSAL. A complete, properly signed response to a Solicitation that, if accepted, would bind the Proposer to perform the resultant Contract.

(36)

PROPOSER. A person, Business Enterprise or Firm that submits a Proposal in response to a Solicitation. A Proposer may be represented by an agent if such agent provides evidence demonstrating the agent's authority.

(37)

REGULAR DEALER. A Firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a Regular Dealer, the Firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a Regular Dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning, operating, or maintaining a place of business if the person both owns and operates distribution equipment for the products. Any supplementing of Regular Dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or Contract-by-Contract basis. Packagers, Brokers, manufacture representatives, or other persons who arrange or expedite transactions are not Regular Dealers.

(38)

SIGNIFICANT LOCAL BUSINESS PRESENCE. A Firm has a Significant Local Business Presence if it has an established place of business in the Austin Metropolitan Statistical Area, at which one or more of its employees is regularly based. Such place of business must have a substantial role in the MBE's/WBE's performance of a Commercially Useful Function. A location utilized solely as a post office box, mail drop or telephone message center or any combination thereof, with no other substantial work function, shall not be construed to constitute a Significant Local Business Presence.

(39)

SMBR. The City's Small and Minority Business Resources Department.

(40)

SOCIALLY DISADVANTAGED. A Minority Person or Woman is Socially Disadvantaged if he or she has been subjected to racial, ethnic or gender prejudice or cultural bias within American society because of his or her identity as a member of a group and without regard to individual qualities. Social Disadvantage must stem from circumstances beyond the individual's control.

(41)

SOLICITATION. A Solicitation means, as the case may be, an invitation for Bids, a request for Proposals, a request for qualifications, a request for quotations, or such other request as defined by the City.

(42)

SUBCONSULTANT. A person, Firm or Business Enterprise providing professional or nonprofessional services to a prime Consultant if such professional or nonprofessional services are procured or used in fulfillment of the prime Consultant's obligations arising from a Contract with the City, and including every level of subconsulting required to fulfill a Contract with the City.

(43)

SUBCONTRACTOR. Any person or Business Enterprise providing goods, labor or services to a Contractor if such goods, labor or services are procured or used in fulfillment of the Contractor's obligations arising from a Contract with the City. Subcontractor includes every level of subcontracting required to fulfill a Contract with the City.

(44)

SUBGOALS. The targeted levels established by the city council for the annual aggregate participation of each group of Minority Persons and Women with respect to Construction procurement, or the targeted levels for the participation of each group of Minority Persons and Women as project participation Goals established pursuant to Section 2-9A-19 ( Establishment of MBE/WBE Participation Levels for Individual Contracts in Construction ).

(45)

USER DEPARTMENT. The department or office of the City that is funding the Contract for the goods or services procured by a Contract and is the consumer of the goods and/or services under Contract on behalf of the City.

(46)

WOMAN. A person, whether a citizen of the United States or a lawfully admitted resident alien, who is of the female gender.

(47)

WOMEN-OWNED BUSINESS ENTERPRISE or WBE. A business including, without being limited to, a sole proprietorship, corporation, partnership, Joint Venture, limited liability company, or any other business or professional entity:

(a)

which is at least 51 percent owned by one or more Women; or, in the case of a publicly owned business, at least 51 percent of all classes of the stock of which is owned by one or more such Women;

(b)

whose management, policies, major decisions and daily business operations are independently controlled by one or more such Women;

(c)

which performs a Commercially Useful Function;

(d)

the size of which does not exceed size limits established by the United States Small Business Administration;

(e)

doing business in the State of Texas for at least three months prior to the date of application for certification;

(f)

which is certified by the City; and

(g)

which is Economically Disadvantaged.

(h)

Women who are Minority Persons may choose for the purposes of certification and recertification to be certified as WBEs, MBEs, or both, but cannot be double counted on a Contract to meet a participation Goal.

Source: Ord. 20060608-058; Ord. 20061214-047; Ord. 20080214-012; Ord. 20081211-060.