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