DATE: November 8, 2016
SUBJECT:
Title
RESOLUTION APPROVING DISADVANTAGED BUSINESS ENTERPRISE POLICY STATEMENT IN ACCORDANCE WITH REGULATIONS OF THE U.S. DEPARTMENT OF TRANSPORTATION, 49 CODE OF FEDERAL REGULATIONS PART 26, FOR CONTRACT OPPORTUNITIES PAID FOR IN PART OR IN WHOLE WITH FEDERAL FINANCIAL ASSISTANCE, AS APPLICABLE
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EXECUTIVE SUMMARY:
The District, as part of being fiscally responsible, pursues grant opportunities as a potential source of funds, which then becomes part of our balanced budget. Grants can be conditioned upon certain assurances which must be met in order for funds to be awarded and/or distributed.
Some of those grant assurances are related to equal opportunity and nondiscrimination in the award and administration of contracts. More specifically, it may include outreach efforts to ensure nondiscrimination and inclusion of small businesses owned and controlled by socially and economically disadvantaged individuals, or other criteria or characteristics such as disabled veterans.
The Department of Transportation (DOT) is committed to serving communities in transportation markets and distributes substantial funding each year to assist with financing construction projects of state and local governments. In providing financial assistance, the DOT takes steps to ensure nondiscrimination in DOT-assisted contracts. The Disadvantaged Business Enterprise (DBE) program is a tool used by the DOT to remedy any ongoing discrimination and the continuing effects of past discrimination in federally-assisted contracting nationwide. The DBE program seeks to level the playing field for all contractors competing for DOT-assisted contracts by providing small businesses owned and controlled by socially and economically disadvantaged individuals a fair opportunity to compete for federally funded contracts. Individuals rebuttably presumed to be socially and economically disadvantaged include minorities, women, and any groups designated by the Small Business Administration.
RECOMMENDATION:
Recommendation
Adopt a Resolution approving Disadvantaged Business Enterprise (DBE) Policy statement in accordance with regulations of the U.S. Department of Transportation (DOT), 49 Code of Federal Regulations (CFR) Part 26, for contract opportunities paid for in part or in whole with federal financial assistance, as applicable.
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FISCAL IMPACT:
This agenda item has no fiscal impact.
Compass Strategic Goals:
Compliance with grant requirements ensures financial assistance toward planned projects. This agenda item supports the following Strategic Goal(s).
• A Port that the public understands and trusts.
• A financially sustainable Port that drives job creation and regional economic vitality.
DISCUSSION:
On July 27, 2016, by Resolution 2016-111, the Board of Port Commissioners (Board) authorized staff to enter into a conditional agreement with the DOT for a $10,000,000 Transportation Investment Generating Economic Recovery (TIGER) grant. The agreement includes various Federal Laws and Regulations incorporated by reference as part of the terms and conditions and contains the provisions of 49 Code of Federal Regulations (CFR) Part 26: Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs, as applicable.
The DBE Policy statement will be separate and apart from Board Policy No. 359: Equal Opportunity Contracting, and will become part of any required DBE plan which would include the following elements:
• Policy Statement by Governing Body;
• Prompt Payment Mechanisms;
• DBE Directory;
• DBE Certification;
• Contract Language;
• Annual DBE Goal;
• Good Faith Efforts Requirements;
• Administrative Appeals; and
• Reports.
The DBE Policy statement was developed in accordance to guidance provided by the DOT, the District’s overarching goals and objectives under equal opportunity in contracting, and is based on the DOT’s sample DBE policy statement. The DBE program will only be implemented on applicable federal financially assisted projects subject to 49 CFR Part 26.
Similarly, BPC Policy No. 359 is the governing document implementing the District’s Small Business Enterprise (SBE) plan which contains essentially the same elements above with the exception of the DBE definition which includes social disadvantage (minorities and women) in addition to economic disadvantaged, or small.
Implementing a DBE program in a broader sense beyond applicable federal financial assisted contracting is prohibited by the California Civil Rights Initiative, also known as Proposition 209. Proposition 209 was passed in November 1996 and amended the State constitution to prohibit preferences based on race or gender in public contracting, employment and education.
While Proposition 209 prohibits preferences such as goal setting based on race or gender; it does not prohibit inclusive outreach, tracking, and reporting of contract opportunities and awards. Minorities and women are included under the District’s Small Business Enterprise program where inclusive outreach efforts, tracking, and reporting is used as a tool to ensure equal opportunity and inclusion of all businesses wanting to do business with the District.
General Counsel’s Comments:
The Office of the General Counsel has reviewed the issues set forth in this agenda and found no legal concerns as presented, and reviewed and approved the “Policy Statement” for form and legality.
Environmental Review:
The proposed Board action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
In addition, the proposed Board action allows for the District to implement its obligations under the Port Act and/or other laws. The Port Act was enacted by the California Legislature and is consistent with the Public Trust Doctrine. Consequently, the proposed Board action is consistent with the Public Trust Doctrine.
Finally, the proposed Board action does not allow for “development,” as defined in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section 1.a. of the District’s Coastal Development Permit Regulations. Therefore, issuance of a Coastal Development Permit or exclusion is not required.
Equal Opportunity Program:
Not applicable.
PREPARED BY:
Shirley Hirai
Manager, Equal Opportunity
Attachment(s):
Attachment A: DBE Policy Statement