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Guidance Concerning Good Faith Efforts
When, the County, establish a contract goal, a bidder must, in order to be responsible and/or responsive,make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for participation by M/WBE firms sufficient for this purpose. Second, even if it doesn't meet the goal,the bidder can document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to achieve an M/WBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient M/WBE participation, even if they were not fully successful.
In any situation in which the County requires a bidder to use the good faith efforts mechanism of this rule shall apply. It is up to the County to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important to consider the quality,quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain M/WBE participation sufficient to meet the M/WBE contract goal. Mere pro forma efforts are not good faith efforts to meet the M/WBE contract requirements. We emphasize, however, that your determination concerning the sufficiency of the firm's good faith efforts is a judgment call, meeting quantitative formulas is not required.
The rule also strongly cautions County officials against requiring that a bidder meet a contract goal (i.e., obtain a specified amount of M/WBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This rule specifically prohibits County officials from ignoring bona fide good faith efforts.
The following is a list of types of actions which the County should consider as part of the bidder's good faith efforts to obtain M/WBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases.
Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified M/WBEs who have the capability to perform the work of the contract. The bidder should solicit this interest within sufficient time to allow the M/WBEs to respond to the solicitation. The bidder must determine with certainty if the M/WBEs are interested by taking appropriate steps to follow up initial solicitations.
Selecting portions of the work to be performed by M/WBEs in order to increase the likelihood that the M/WBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate M/WBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces.
Providing interested M/WBEs with adequate information about the plans, specifications,and requirements of the contract in a timely manner to assist them in responding to a solicitation.
Negotiating in good faith with interested M/WBEs. It is the bidder's responsibility to make a portion of the work available to M/WBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available M/WBE subcontractors and suppliers, so as to facilitate M/WBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of M/WBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for M/WBEs to perform the work.
A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including M/WBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using M/WBEs is not in itself sufficient reason for a bidder's failure to meet the contract M/WBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however,required to accept higher quotes from M/WBEs if the price difference is excessive or unreasonable.
Not rejecting M/WBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations,or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal.
Making efforts to assist interested M/WBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor.
Making efforts to assist interested M/WBEs in obtaining necessary equipment,supplies,materials, or related assistance or services.
Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local,state, and Federal minority/women business assistance offices;and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of M/WBEs.
In determining whether a bidder has made good faith efforts, County officials may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal,but others meet it, you may reasonably raise the question of whether,with additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal,but meets or exceeds the average M/WBE participation obtained by other bidders, County officials may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts.