§ 2-9A-20. COUNTING PARTICIPATION OF MBES AND WBES.

(A)

When a MBE/WBE participates in a Contract, only the value of the work actually performed by the MBE/WBE toward MBE/WBE Goals shall be counted towards the overall Goal.

(1)

The entire amount of that portion of a Contract that is performed by the MBE's/WBE's own forces shall be counted, including the cost of supplies and materials obtained by the MBE/WBE for the work of the Contract, and supplies purchased or equipment leased by the MBE/WBE (except supplies and equipment the MBE/WBE Subcontractor purchases or leases from the prime Contractor or its Affiliate).

(2)

Notwithstanding clause (1) above, on a single Contract, a MBE that is also a WBE may only be counted once (i.e., toward the MBE Goal or toward the WBE Goal, but not both).

(3)

The entire amount of fees or commissions charged by a MBE/WBE Firm 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, toward MBE/WBE Goals, provided the fee is reasonable and not excessive as compared with fees customarily allowed for similar services shall be counted.

(4)

When a MBE/WBE subcontracts part of the work of its Contract to another Firm, the value of the subcontracted work may be counted toward Goals only if the MBE/WBE Subcontractor is itself a MBE/WBE. Work that a MBE/WBE subcontracts to a non-MBE/non-WBE Firm does not count toward MBE/WBE Goals.

(5)

If a Subcontractor contracts part of its work to a MBE/WBE Firm, the value of that work may be counted toward MBE/WBE Goals. Work that a MBE/WBE Subcontractor contracts to another MBE/WBE Firm shall not be counted twice towards the Goal.

(B)

When a MBE/WBE performs as a participant in a Joint Venture, only the portion of the total dollar value of the Contract equal to the distinct, clearly defined portion of the work of the Contract that the MBE/WBE performs with its own forces and for which it is at risk shall be counted towards MBE/WBE Goals.

(C)

Only expenditures to a MBE/WBE Contractor that is performing a Commercially Useful Function shall be counted.

(D)

When a MBE/WBE is presumed not to be performing a Commercially Useful Function as provided in this section, the MBE/WBE may present evidence to rebut this presumption. SMBR may determine that the Firm is performing a Commercially Useful Function given the type of work involved and normal industry practices.

(E)

Expenditures with MBEs/WBEs for materials or supplies shall be counted toward MBE/WBE Goals as follows:

(1)

If the materials or supplies are obtained from a MBE/WBE Manufacturer or Regular Dealer, 100 percent of the cost of the materials or supplies toward MBE/WBE Goals shall be counted.

(2)

With respect to materials or supplies purchased from a MBE/WBE that is neither a Manufacturer nor a Regular Dealer, count the entire amount of 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, toward MBE/WBE Goals only if the payment of such fees are a customary industry practice and such fees are reasonable and not excessive as compared with fees customarily allowed for similar services. Do not count any portion of the cost of the materials and supplies themselves toward MBE/WBE Goals, however.

(F)

If a Firm ceases to be a certified MBE/WBE during a Contract, the dollar value of work performed under a Contract with that Firm after it has ceased to be certified shall not be counted.

(G)

In determining achievement of MBE/WBE Goals, the participation of a MBE/WBE Subcontractor shall not be counted until the amount being counted toward the Goal has been paid to the MBE/WBE.

Source: Ord. 20060608-058; Ord. 20081211-060.