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Good Faith Rules
What are the good faith efforts procedures recipients follow in situations where there are contract goals?
When the County establishes a contract goal on a project for M/WBE, the County must award the contract only to a Bidder/Proponent who makes good faith efforts to meet its goal. The County must determine that a Bidder/Proponent has made good faith efforts if the Bidder/Proponent does either of the following things:
Documents that it has obtained enough M/WBE participation to meet the goal; or
Documents that it made adequate good faith efforts to meet the goal, even though it did not succeed in obtaining enough M/WBE participation to do so. If the Bidder/Proponent does document adequate good faith efforts, the County must not deny award of the contract on the basis that the Bidder/Proponent failed to meet the goal. This is guidance in determining the adequacy of a Bidder/Proponent's good faith efforts.
In the solicitations for Chatham County contracts for which a contract goal has been established, the following must be required:
The awarding of the contract will be conditioned on meeting the requirements of this section;
All bidders/proponents will be required to submit the following information to the recipient, at the time provided in this section:
The names and addresses of M/WBE firms that will participate in the contract;
A description of the work that each M/WBE will perform;
The dollar amount of the participation of each M/WBE firm participating;
Written documentation of the Bidder/Proponent's commitment to use an M/WBE subcontractor whose participation it submits to meet a contract goal;
Written confirmation from the M/WBE that it is participating in the contract as provided in the prime contractor's commitment; and
If the contract goal is not met, evidence of good faith efforts of this part;
At your discretion, the Bidder/Proponent must present the information required by this section:
Under sealed bid procedures, as a matter of responsiveness, or with initial proposals, under contract negotiation
At any time before the County commit themselves to the performance of the contract by the Bidder/Proponent, as a matter of responsibility.
The County must make sure all information is complete and accurate and adequately documents the Bidder/Proponent's good faith efforts before committing themselves to the performance of the contract by the Bidder/Proponent.
If the County determines that the apparent successful Bidder/Proponent has failed to meet the requirements of paragraph (A) of this section, the County must, before awarding the contract, provide the Bidder/Proponent an opportunity for administrative reconsideration.
As part of this reconsideration, the Bidder/Proponent must have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so.
The County's decision on reconsideration must be made by an official who did not take part in the original determination that the Bidder/Proponent failed to meet the goal or make adequate good faith efforts to do so.
The Bidder/Proponent must have the opportunity to meet in person with the County's reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so.
The County must send the Bidder/Proponent a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so.
In a "design-build" or "turnkey" contracting situation, in which the County lets a Program Manager contract to a contractor, who in turn lets subsequent subcontracts for the work of the project, the County may establish a goal for the project. The Program Manager then establishes contract goals, as appropriate, for the subcontracts it lets. The County must maintain oversight of the Program Manager's activities to ensure that they are conducted consistent with the requirements of this part.
1. The County must require that a prime contractor not terminate an M/WBE subcontractor listed in response to paragraph of this section (or an approved substitute M/WBE firm) without the M/WBE prior written consent. This includes, but is not limited to, instances in which a prime contractor seeks to perform work originally designated for an M/WBE subcontractor with its own forces or those of an affiliate, a non-M/WBE firm, or with another M/WBE firm.
2. When an M/WBE subcontractor is terminated, or fail to complete its work on the contract for any reason, The County must require the contractor to make a good faith effort to find another M/WBE subcontractor to substitute for the original M/WBE. These good faith efforts must be directed toward finding another M/WBE to perform at least the same amount of work under the contract as the M/WBE terminated.
The County may provide such written consent only if it is agreed, for reasons stated in concurrence document, that the prime contractor has good cause to terminate the M/WBE firm.
3. For purposes of this section, good cause includes, not limited to the following circumstances:
The listed M/WBE subcontractor fails or refuses to execute a written contract;
The listed M/WBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided, however, that good cause does not exist if the failure or refusal of the M/WBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime contractor;
The listed M/WBE subcontractor fails or refuses to meet the prime contractor's reasonable, nondiscriminatory bond requirements.
The listed M/WBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;
The listed M/WBE subcontractor is ineligible to work on public works projects because of suspension and debarment proceedings pursuant the rules of the County Purchasing rules or state law;
You have determined that the listed M/WBE subcontractor is not a responsible contractor;
The listed M/WBE subcontractor voluntarily withdraws from the project and provides to you written notice of its withdrawal;
The listed M/WBE is ineligible to receive M/WBE credit for the type of work required;
An M/WBE owner dies or becomes disabled with the result that the listed M/WBE contractor is unable to complete its work on the contract;
Other documented good cause that you determine compels the termination of the M/WBE subcontractor. Providedthat good cause does not exist if the prime contractor seeks to terminate an M/WBE it relied upon to obtain the contract so that the prime contractor can self-perform the work for which the M/WBE contractor was engaged or so that the prime contractor can substitute another M/WBE or non-M/WBE contractor after contract award.
4. Before transmitting to you its request to terminate and/or substitute a M/WBE subcontractor, the prime contractor must give notice in writing to the M/WBE subcontractor, with a copy to you, of its intent to request to terminate and/or substitute, and the reason for the request.
5. The prime contractor must give the M/WBE (7) seven days to respond to the prime contractor's notice and advise you and the contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why the County should not approve the prime contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), the County may provide a response period shorter than seven days.
6. In addition to post-award terminations, the provisions of this section apply to pre-award deletions of or substitutions for M/WBE firms put forward by a bidder/proponent in negotiated procurements.
When an M/WBE subcontractor is terminated, or fails to complete its work on the contract for any reason, the County must require the prime contractor to make good faith efforts to find another M/WBE subcontractor to substitute for the original M/WBE. These good faith efforts shall be directed at finding another M/WBE to perform at least the same amount of work under the contract as the M/WBE that was terminated, to the extent needed to meet the contract goal the County established for the procurement.
The County must include in each prime contract a provision for appropriate administrative remedies that is will invoked if the prime contractor fails to comply with the requirements of this section.
The County must apply the requirements of this section to M/WBE bidders/proponents for prime contracts. In determining whether an M/WBE Bidder/Proponent for a prime contract has met a contract goal, the County count the work the M/WBE has committed to performing with its own forces as well as the work that it has committed to be performed by M/WBE subcontractors and M/WBE suppliers.