§ 2-9B-23. POST-SUBMISSION CHANGES TO THE COMPLIANCE PLAN.

(A)

The Contractor or Consultant cannot make changes to the compliance plan or substitute Subcontractors or Subconsultants listed in the compliance plan without the prior written approval of the Director. Unauthorized changes or substitutions shall be a violation of this chapter, and may constitute grounds for rejection of the Bid or Proposal or cause termination of the executed Contract for breach, and/or subject the Bidder/Proposer to Contract penalties or other sanctions.

(B)

All requests for changes or substitutions of the Subcontractors or Subconsultants listed in the compliance plan shall be made to the Director in writing, and shall clearly and fully set forth the basis for the request. A Contractor/Consultant shall not substitute a Subcontractor/Subconsultant or perform the work designated for a Subcontractor/Subconsultant in the compliance plan with its own forces unless and until the Director approves such substitution in writing. A Contractor/Consultant shall not allow a substituted Subcontractor/Subconsultant to begin work until both the Director and the City's project manager overseeing the completion of the Contract have approved the substitution.

(C)

The facts supporting the request must not have been known nor reasonably should have been known by the parties prior to the submission of the compliance plan. Bid shopping is prohibited. The Contractor/Consultant must meet with the Subcontractor/Subconsultant and negotiate with the Subcontractor/Subconsultant to resolve the problem. If requested by either party, the City shall facilitate such a meeting. Where there has been a mistake or disagreement about the scope of work, the MBE/WBE can be substituted only where an agreement cannot be reached for a reasonable price for the correct scope of work.

(D)

Substitutions of the Subcontractor/Subconsultant shall be permitted only on the following bases:

(1)

unavailability after receipt of reasonable notice to proceed;

(2)

failure of performance;

(3)

financial incapacity;

(4)

refusal by the Subcontractor/Subconsultant to honor the Bid or Proposal price;

(5)

mistake of fact or law about the elements of the scope of work of a Solicitation where a reasonable price cannot be agreed;

(6)

failure of the Subcontractor/Subconsultant to meet insurance, licensing or bonding requirements; or

(7)

the Subcontractor's/Subconsultant's withdrawal of its Bid or Proposal.

(E)

The Director's decision whether to permit or deny the proposed substitution, and the basis therefore, will be communicated to the parties in writing by the Director within seven business days.

(F)

Where the Contractor/Consultant has established the basis for the substitution to the satisfaction of the Director, he shall make Good Faith Efforts to fulfill the compliance plan. The Contractor/Consultant may seek the assistance of SMBR in obtaining a new MBE/WBE Subcontractor/Subconsultant. To fulfill the compliance plan, the Contractor/Consultant shall first make Good Faith Efforts to substitute with a Like-Kind MBE/WBE Subcontractor/Subconsultant. If a competitive agreement considering price, quality and delivery cannot be reached with such Subcontractor/Subconsultant, the Contractor/Consultant shall make Good Faith Efforts to obtain other MBE/WBE substitutes so as to meet the Goals or Subgoals, in conformance with Section 2-9B-21 ( Pre-Award Compliance Procedures ). If the Goals or Subgoals cannot be reached and Good Faith Efforts have been made to meet the Goals, the Contractor/Consultant may substitute with a non-MBE/non-WBE Subcontractor/Subconsultant.

(G)

When a MBE/WBE is included in a Bidder's compliance plan and is decertified or becomes ineligible to participate on contracts after issuance of a Solicitation but prior to award, or subsequent to award of a Contract, the participation of such a Business Enterprise may be counted as provided in the rules.

(H)

If the City, as owner under the Contract, requires the substitution of a Subcontractor/Subconsultant listed in the compliance plan, the Contractor/Consultant shall undertake Good Faith Efforts to substitute with a Like-Kind MBE/WBE Subcontractor/Subconsultant. If a competitive agreement considering price, quality and delivery cannot be reached with such Subcontractor/Subconsultant, the Contractor/Consultant shall make Good Faith Efforts to obtain other MBE/WBE substitutes so as to meet the Goals or Subgoals, in conformance with Section 2-9B-21 ( Pre-Award Compliance Procedures ). If the Goals or Subgoals cannot be reached and Good Faith Efforts have been made to meet the Goals, the Contractor/Consultant may substitute with a non-MBE/non-WBE Subcontractor/Subconsultant.

(I)

If a Contractor/Consultant plans to hire a Subcontractor/Subconsultant on any scope of work that was not previously disclosed in the compliance plan, the Contractor/Consultant shall obtain the approval of the Director to modify the compliance plan and must make Good Faith Efforts to ensure that MBEs/WBEs have a fair opportunity to Bid on the new scope of work.

Source: Ord. 20060608-059; Ord. 20081211-061.