Annually, the Board of Estimates, with the advice of the Minority and Women’s Business Opportunity Office, must review and establish the participation goals for Minority Business Enterprises and for Women’s Business Enterprises. Ord. 00-098 Ord. 07-606

The purpose of the annual goals is to aid the City in its annual evaluation of the Program’s effectiveness. Annual participation goals are not and may not be quotas. Ord. 00-098 Ord. 07-606

The Minority and Women’s Business Opportunity Office must establish appropriate MBE and WBE participation goals on each specific contract, as provided in this Part III. Ord. 00-098 Ord. 16-595

In setting the goals on a contract, the Office must consider:the availability in various industry classifications and professions of MBEs and WBEs that are qualified and willing to provide goods, expertise, and services on the particular contract; the level of utilization of these firms in past contracts awarded by the City; the contract specifications; the adverse impact on non-MBEs and -WBEs; and any other relevant factors. On construction contracts for which the estimated cost is $1,000,000 or more, the Office may, in consultation with the contracting agency, set goals for MBEs divided into subgoals for African American-, Hispanic American-, Asian American-, or Native American-owned firms. On architectural or engineering contracts, the Office may, in consultation with the contracting agency, set goals for MBEs divided into subgoals for African American-, Hispanic American-, Asian American-, or Native American-owned firms. In establishing goals on each contract, the Office must consult with the contracting agency, the City Purchasing Agent, or both. Ord. 00-098 Ord. 07-606

The contract goals must be clearly published as part of the contract specifications in the invitation to bid or request for proposals. Ord. 00-098

The contract goals apply to the initial contract amounts, to any alternates, and to all subsequent amendments, supplements, extra work orders, change orders, or other modifications that, whether individually or in the aggregate, increase the dollar value of the contract by more than 10%. Ord. 00-098

Annually, the Office must review MBE and WBE participation on all contracts and procurement to evaluate the effect of the Program and the City’s progress towards meeting the annual goals. The Office must report its findings to the Board of Estimates. Ord. 00-098 Ord. 07-606

MBE and WBE participation toward meeting contract goals must be counted in accordance with this Part IV. A business that is certified both as an MBE and a WBE may be counted towards either the MBE or the WBE contract goal, but not towards both. The participation of the certified firm cannot be split between the MBE goal and the WBE goal. Participation of an MBE or WBE subcontractor cannot be counted towards the goal until the amount being counted has been paid to the MBE or WBE. Subject to limitation in paragraph (2) of this subsection, a certified MBE or WBE that has been awarded a contract as a prime contractor may count up to 50% of the dollar value of the work it intends to perform with its own forces towards the applicable MBE or WBE goal. The amount of the credit may not exceed the MBE’s or WBE’s available work capacity calculated in accordance with the contractor prequalification rules established by the Board of Estimates. Ord. 00-098 Ord. 07-606 Ord. 14-265 Ord. 16-595

In this section, “commercially useful function” means the performance by a business enterprise of real and distinct work for which the business enterprise has the skill, expertise, and actual responsibility to perform, manage, and supervise. The bidder may count toward the contract goals only expenditures to certified business enterprises that perform commercially useful functions in the execution of the contract. To determine whether a certified business enterprise is performing a commercially useful function, the City must evaluate:the amount of work subcontracted; industry practices; whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing and with the MBE or WBE credit claimed for its performance of the work; and other relevant factors. With respect to materials and supplies used on the contract, the MBE or WBE is responsible for negotiating price, determining quality and quantity, ordering the material, installing (where applicable), and paying for the material itself. When an MBE or WBE is presumed not to be performing a commercially useful function, the MBE or WBE may present evidence to rebut this presumption. The MBE or WBE must provide written documentation to the Chief, whose decision is final. Ord. 00-098 Ord. 07-606

A bidder may count toward the contract goal the portion of its expenditure to a joint venture that is equal to the percentage of a certified business enterprise’s participation in the joint venture. The MBE or WBE member of the joint venture must have an interest in the control, management, risks, and operation of the joint venture commensurate with the member’s percentage of ownership. The certified business enterprise that is a member of the joint venture must be responsible for a distinct, clearly defined portion of the work to be performed with its own forces, equal to its share in the ownership, control, and management of the joint venture. Ord. 00-098 Ord. 07-606

A bidder may not count toward its contract goal any agreements with certified business enterprise subcontractors who intend to subcontract more than 10% of the dollar amount of the services to be performed under the agreement between the bidder and the certified business enterprise. This section does not apply to a subcontractor’s contracts for the purchase of materials, equipment, or supplies as an incident to the performance of services under its contract. Ord. 00-098

A business enterprise that is certified as both an MBE and a WBE may not be counted toward both MBE and WBE goals for the same project. The bidder must select the goal for which the business enterprise is to be counted toward. Ord. 07-606

A bidder may count towards the contract goal its entire expenditure to a certified business enterprise manufacturer. Ord. 00-098

If a bidder uses 1 or more suppliers to satisfy a contract goal, in whole or in part, the certified business enterprise supplier participation may be credited towards the applicable goal, as provided in this section. A bidder may count 100% of its expenditure to a certified business enterprise supplier who manufactures the goods supplied. A bidder may count 100% of its expenditure to a certified business enterprise supplier who is:a wholesaler warehousing the goods supplied; or a manufacturer’s representative, However, only 25% of the applicable contract goal may be attained by expenditures to certified business enterprises that are non-manufacturing suppliers. For contracts where an extraordinarily large proportion of the contract price is for equipment or supplies:a lower project goal may be set than otherwise would be required; the 25% limit for suppliers may be increased; or a combination of these two methods may be used. Ord. 00-098

A bidder may count towards the contract goals the fees or commissions charged by a certified business enterprise insurance company or travel agent, as long as the fee or commission is reasonable and not excessive as compared with fees or commissions customarily allowed for similar services. Ord. 00-098 Ord. 07-606

A bidder may count towards the contract goals only the fees charged and earned by a certified business enterprise financial institution. Ord. 00-098

A bidder is precluded from using a certified business enterprise to meet a contract goal if the bidder has a financial interest in, has an interest in the ownership or control of, or is significantly involved in the operation of the certified business enterprise. In order for a non-certified bidder to use a certified business enterprise to meet a contract goal, the non-affiliation criteria established by the Minority and Women’s Business Opportunity Office must be met. Ord. 00-098 Ord. 07-606

The following standards and procedures apply to every contract for which the estimated cost is $1,000 or more and less than $5,000. The Office must provide the contracting agency with a list of certified business enterprises qualified to provide each of the materials, equipment, supplies, or services that the contracting agency indicates are required by the City. The contracting agency must solicit bids from certified business enterprises that are certified to supply the required materials, equipment, supplies, or services. If no qualified certified business enterprise is available:the contracting agency must so notify the Office before the solicitation of bids; and the Office must attempt to identify qualified businesses and, if successful, notify the contracting agency of their availability. The contracting agency must provide certified business enterprises every practical opportunity to submit bids. Ord. 00-098

The following standards and procedures apply to every contract for which the estimated cost is $5,000 or more and less than $50,000. Before the solicitation of bids, the contracting agency must furnish the Office with an informational copy of all bid conditions and requests for proposals. The Office may recommend to the contracting agency certified business enterprises that can be solicited directly to submit bids. Ord. 00-098 Ord. 11-557

The following standards and procedures apply to every contract for which the estimated cost is $50,000 or more. In addition to any other applicable requirements, the bid conditions and requests for proposals must require each bidder to include in its bid a certified business enterprise participation affidavit in which the bidder commits to utilize certified business enterprises in a percentage that equals or exceeds the applicable contract goals. Any bid that does not include the certified business participation affidavit is non-responsive. Prior to bid opening, bidders must submit to the City the certified business enterprise participation statement, including executed statements of intent, that specify:the name of each certified business enterprise to whom the bidder intends to award a subcontract; whether that subcontractor is:a minority business enterprise; or a women’s business enterprise. the dollar value of each subcontract; the scope of the work to be performed under that subcontract; and any other information the Office requires to determine whether the contract goals have been satisfied. Each bidder is responsible for verifying that all MBEs and WBEs to be used have been certified by the Office before bid opening. During the term of the contract, any unjustified failure to comply with the levels of certified business enterprise participation identified in the bid is a material breach of contract. Before final payment may be made under the contract, the contractor must submit a list of all subcontractors utilized on the contract, both MBE/WBE and non-MBE/WBE. The list must include, as to each subcontractor:its name; the service or goods provided; the total amount paid to it; and its owner’s race/ethnicity and sex. Ord. 00-098 Ord. 07-606 Ord. 11-557

The following standards and procedures apply to:every lease in which the City is the lessee; and every contract for a concession. City agencies must solicit bids from certified business enterprises that are certified to enter into leases or concession contracts. If, after investigation, a contracting agency determines that no qualified certified business enterprise is available:the contracting agency must so notify the Office before signing a lease or awarding a concession contract, unless the Office has waived notification based on the known unavailability of qualified certified businesses to perform a particular contract; and the Office may attempt to identify qualified certified business enterprises and, if successful, must notify the contracting agency of their availability. The contracting agency must provide the minority and women’s business enterprises every practical opportunity to submit bids. All requests for concession bids must require concessionaires to make every good faith effort to utilize minority and women’s business enterprises as subcontractors and suppliers, whenever possible, if subcontractors are used. Concession bidders must be required to submit their projected utilization of minority and women’s business enterprises along with a description of the efforts made to utilize those businesses. Ord. 00-098

All City agencies, commissions, and boards, in the deposit of funds and performance of their other official duties, must make every good faith effort to equitably utilize the services of minority and women’s business enterprises. The services to which this section applies include, but are not limited to:the financial services of banks, savings and loan companies, insurance companies, and other commercial financial institutions; arrangements for travel and accommodations when traveling on official City business; and legal services. All City agencies must submit to the Office, on an annual basis, a written report on the efforts made under this subsection. The City Finance Department, City Comptroller, and Retirement Boards must report annually to the Mayor and City Council on their utilization of financial institutions that are minority or women’s business enterprises. Ord. 00-098

In the event that competitive bids are not obtained due to an emergency in accordance with <cite data-doc="City of Baltimore, Md., Charter" data-path="VI|§11|(e)">Article VI, § 11(e) of the Baltimore City Charter</cite>, the contracting agency must meet the requirements set forth in subsection (b) of this section that will serve as its utilization requirements. If an emergency procurement under <cite data-doc="City of Baltimore, Md., Charter" data-path="VI|§11|(e)">Article VI, § 11(e) of the Baltimore City Charter</cite> is necessary, a contracting agency shall:contact the Office for assistance in finding MBE and WBE contractors or subcontractors that can provide the goods or services needed; provide contractors with a list of possible subcontractors that contains at least 2 MBE or WBEs, if applicable; and to the extent possible, receive at least 1 quote from an MBE and 1 quote from a WBE that can provide the goods or services needed. The Office shall provide all necessary assistance to an agency in making good faith efforts to comply with this chapter for the emergency procurement. As soon as possible after the execution of any emergency procurement under <cite data-doc="City of Baltimore, Md., Charter" data-path="VI|§11|(e)">Article VI, § 11(e) of the Baltimore City Charter</cite> was necessary, but no later than 45 days after the contract execution, the agency shall submit a report to the Board of Estimates and the Office stating:the name and address of the selected contractor; whether the contractor is a City-certified MBE or WBE; an overview of the nature of the emergency and why an emergency procurement was necessary; a reasonable estimation of the threat or loss that may have occurred had an emergency procurement not been taken; a summary of the contractor’s qualifications, experience, and background to provide the emergency goods or services and the basis on how the contractor was selected over other qualified and responsive potential contractors; if applicable, a description of the scope of work, including the costs, fees, or rates for the purchase; if applicable, a description of the work performed by the contractor to mitigate or eliminate the emergency; if applicable, a justification regarding why an additional procurement was necessary when an existing City contract might have provided the goods or services necessary; and a list of all potential vendors contacted, including the MBE and WBE contacted under subsection (b)(2) of this section. The report required by this subsection shall be posted to the Office’s website on its receipt. Ord. 21-015 This section was enacted on March 31, 2021 by Ordinance 21-015, with an effective date of June 29, 2021.

In addition to any other applicable requirements, the following requirements apply to all contracts awarded by the City. Ord. 00-098

Bid conditions, requests for proposals, and all other specifications for contracts awarded by the City must require that, where a contract goal is applicable, the bidder must: make good faith efforts before the opening of bids or submission of proposals to meet the contract goal; and keep records of its good faith efforts, adequate to permit a determination of compliance with this chapter. Ord. 00-098 Ord. 07-606 Ord. 16-595

Each contract must: incorporate this chapter by reference; provide that the failure of any bidder, contractor, or subcontractor to comply with this chapter is a material breach of contract; and require that, during its term, the contractor will:fulfill Program commitments submitted with the bids; continue to make good faith efforts to utilize minority and women’s business enterprises; and maintain records reasonably necessary for monitoring compliance with this chapter. Ord. 00-098 Ord. 07-606 Ord. 16-595

A contractor must pay its subcontractors in a timely fashion for satisfactory work. A payment is timely if it is mailed, delivered, or transferred to a subcontractor no later than 7 calendar days after the contractor receives payment from the City. Beginning with the second pay request from a contractor to the City, the contractor must provide the City with evidence that all subcontractors have been paid out of the proceeds of the prior payment, unless a bona fide dispute, documented in writing, exists between the contractor and the unpaid subcontractor. Ord. 00-098 Ord. 07-606

As a condition of each contract, the awardee of the contract must submit the following when requested by the Office: copies of signed agreements with the business enterprises being utilized to achieve the contract goals; reports and documentation verifying payments to the business enterprises being used to achieve the contract goals; and reports and documentation on the extent to which the contractor has awarded subcontracts to minority and women’s business enterprises under contracts not affected by this chapter. Ord. 00-098 Ord. 16-595

A contracting agency may request that the Office waive or reduce the contract goals by submitting the reasons for the request in writing before bids are solicited. The Office may grant the waiver or reduction if the Office determines that:the reasonable and necessary requirements of the contract render subcontracting or other participation of businesses other than the bidder infeasible; or at least 2 qualified certified business enterprises capable of providing the goods or services required by the contract are unavailable in the Baltimore City Market Area despite every feasible attempt to locate them. Any reduction granted by the Office must specify the amount to which the goal has been reduced. Whenever the Office denies a request to waive or reduce a goal, the contracting agency may appeal that denial to the Board of Estimates. The Board’s decision on the request is final. Ord. 00-098 Ord. 07-606

If a bidder is unable to comply with the contract goals, the bidder may submit a request for a waiver at the time of bid opening. The request for a waiver must include documentation that demonstrates the bidder’s good faith efforts to meet the goals. Ord. 00-098 Ord. 07-606

If, after award of a contract, the contractor is unable to meet any contract goal by utilizing the certified business enterprises specified at bid opening, the contractor must seek a substitute certified business enterprise to fulfill its commitment. The Office may approve the substitution only after consulting with the Mayor’s Office of Minority and Women’s Business Development. If, after reasonable good faith efforts, the contractor is unable to find a substitute, the contractor must request a post-award waiver. A contractor may not substitute an MBE or WBE subcontractor or perform the work designated for an MBE or WBE subcontractor with its own forces unless the Chief, after consulting with the contracting agency, approves the substitution in writing. The request must be in writing and document the reasons for the contractor’s inability to meet the contract goal. The contractor must negotiate with the MBE or WBE subcontractor to resolve the problem. The Chief’s final decision to permit or deny a proposed substitution, and the basis of any denial, shall be communicated to the parties in writing by the Chief. Where the contractor has established the basis for a substitution to the satisfaction of the Chief, the contractor must make good faith efforts to achieve the goals. The contractor may seek the assistance of the Office in obtaining a new MBE or WBE. If the contract goals cannot be reached and good faith efforts have been made, the contractor may substitute with a non-certified business. Ord. 00-098 Ord. 07-606 Ord. 14-265

A contracting agency may waive the utilization requirements for a specific contract as provided in this section. The agency may waive the utilization requirements if, with the advice of the Office, it finds that:needed goods or services are available only from a sole source; and the prospective contractor is not currently disqualified from doing business with the City. The agency may waive the utilization requirements if it certifies in writing to the Office that:an emergency exists that requires goods or services to be provided with such an immediacy that the agency is unable to comply with this chapter; and the prospective contractor will make every good faith effort to subcontract to minority and women’s business enterprises if subcontracting is utilized. Ord. 00-098 Ord. 16-595

Each contracting agency must take the following actions to ensure that MBEs and WBEs have maximum opportunity to participate on City contracts. Ord. 00-098

Every contracting agency must ensure that invitations to bid or requests for proposals emanating from the agency comply with this chapter. Ord. 00-098 Ord. 16-595

Each agency head or designee must: assume primary responsibility for achieving the goals of the Program; and on a continuing basis, review all aspects of the Program’s operations to assure that the purpose is being attained. Ord. 00-098

Advertisements for bids must appear in minority-owned media no less than 10 days before bids are due for specific contracting opportunities. A written notification of contracting opportunities must be sent to minority and women’s business trade associations and contractor’s associations no less than 10 days before bids are due. All contract solicitations must include the MBE/WBE policy and any related materials required by the bid documents. Ord. 00-098

All contracting opportunities must be evaluated in an effort to divide the total requirements of a contract to provide reasonable opportunities for participation by minority and women’s business enterprises. Ord. 00-098

Each contracting agency must establish procedures to ensure that: all contractors who submit correct invoices are paid within 30 days; and all subcontractors are paid within 7 days after the City pays the general contractor. Ord. 00-098

Each contracting agency must establish guidelines to ensure that a notice to proceed is not issued until the contracting agency has received copies of all documents needed to evidence the contractor’s fulfillment of its commitments under this chapter. Ord. 00-098 Ord. 16-595

Each contracting agency must submit to the Office all statistics and documentation that the Office requests. Ord. 00-098

For the purposes of determining compliance with contract goals, a business enterprise may be counted as an MBE or WBE only if it has been so certified by the Office before bid opening. If a business listed in a bidder’s Information and Utilization Commitment Form has not been certified, the amount of participation will be deducted from the total MBE or WBE utilization in determining whether the bidder is responsive. Ord. 00-098

To be eligible for certification as a minority business enterprise or women’s business enterprise, the business enterprise must:be an independent, operating business; be at least 51% minority- or women-owned; before applying for certification, have been in operation for at least 12 months before applying for certification; have been minority- or women-owned for at least 12 months before applying for certification; and have an operating office in the Baltimore City Market Area. To determine whether the business enterprise has the required operating office, the Office will consider the office arrangements, industry practices, and other relevant factors. Ord. 00-098 Ord. 07-606 Ord. 08-063

The ownership and control by minorities or women must be:real and substantial; and indicated by the customary incidents of ownership, as demonstrated by an examination of the substance rather than the form of ownership and operating arrangements. The minority or women owners must possess the power:to direct or cause the direction of the management and policies of the business enterprise; and to make day-to-day decisions, as well as decisions on matters of management, policy, and operations. The business enterprise may not be subject to any formal or informal restrictions that limit the customary discretion of the minority or women owners. There may not be any restriction, whether by partnership agreement, charter requirements, or other arrangement, that prevents the minority or women owners from making business decisions without the cooperation or vote of any owner who is not a minority or a woman. The operating arrangements and the ownership and control by the minority-group members must have been in operation for at least 12 months before applying for certification. Ord. 00-098

With the advice of the Office, the Board of Estimates may establish maximum size standards for minority and women’s business enterprises. There may be separate size standards for separate business categories. The Board of Estimates must annually review any size standards established under this section. A business enterprise may not be certified as an MBE or WBE or, once certified, have its certification renewed if, on the effective date of the application or renewal, the MBE or WBE no longer meets size standards established under subsection (a) of this section. Ord. 00-098 Ord. 07-606

The Office may investigate a business enterprise’s ownership, management, qualifications, and other relevant matters beyond formal documentation:at the initial certification; and during certification or recertification. To the extent reasonably necessary to ensure compliance, these investigations may include, but are not limited to:personal interviews with persons having knowledge or relevant information relating to a business enterprise’s eligibility, certification, or decertification; personal interviews with bidders, contractors, vendors, or suppliers involved in a joint venture or contractual relationship with the business enterprise; reviewing records pertaining to certification; and conducting random, on-site visits, audits, or relevant inquiries. Ord. 00-098

The Office may decertify a business that it determines no longer meets the certification criteria. Ord. 00-098

All adverse certification determinations by the Office must:be in writing; include the reasons for the determination; and be sent to the affected business enterprise. An aggrieved party has a right to protest an adverse certification determination and seek administrative review. To obtain administrative review, the aggrieved party must submit a written protest to the Chief within 7 days of receipt of the adverse determination. The protest must specify the reasons and factual grounds of the protest and be accompanied by any supporting documents. Within 25 days of receipt of the protest, the Chief must:review the protest and all relevant supporting documents; and render a written decision that includes the reasons for the decision. After all departmental remedies have been exhausted, the aggrieved applicant may request a hearing before a panel of independent hearing officers, with 1 member of the panel being appointed by the President of the City Council and the other members of the panel being appointed by the City Solicitor. The hearing officer must be knowledgeable of Baltimore City procurement laws and procedures, including this subtitle. Ord. 00-098 Ord. 07-606

During the term of a contract subject to this chapter, the Office must monitor continued compliance with this chapter. Ord. 00-098 Ord. 16-595

If the Office finds cause to believe that a contractor or subcontractor has failed to comply with any requirement of this chapter or with any contract provision relating to utilization under this chapter, the Office must:so notify the contracting agency and the contractor; and attempt to resolve the noncompliance through conciliation. If the noncompliance cannot be resolved, the Office and the contracting agency must submit written findings and recommendations to the Board of Estimates. The Board of Estimates may impose sanctions in accordance with Chapter 4 of this subtitle. Ord. 00-098 Ord. 16-595

If, after investigation, the Office finds that a contracting agency has failed to comply with a provision of this chapter, the Office must:send the agency a written finding that specifies the nature of the noncompliance; and attempt to resolve the noncompliance through conference and conciliation. If the noncompliance cannot be resolved, the Office must submit its written findings and recommendations to the Board of Estimates. the Board of Estimates may take appropriate action to secure compliance. Ord. 00-098 Ord. 16-595

The Office may require contractors, bidders, contracting agencies, and the head of any City agency to submit any reports, documents, or other information reasonably necessary to determine compliance with this chapter. Ord. 00-098 Ord. 16-595

A contracting agency must keep accurate records for each contract it awards. These records must include:dollar value of contract; nature of goods or services to be provided; name of contractor; efforts employed to solicit bids from certified minority and women’s business enterprises; and all subcontracts awarded by the contractor, identifying for each:dollar value; nature of goods or services provided; name of subcontractor; and race/ethnicity and sex of subcontractor’s owner. Ord. 00-098

The Office must submit an annual report to the Mayor and the City Council on the City’s progress toward the utilization goals established under this chapter. The report must include:any problems; and specific recommendations for improving the City’s performance. Ord. 00-098 Ord. 16-595