The Office must: report at least annually to the Mayor and the City Council on the City’s progress towards satisfying SLBE Program objectives; formulate SLBE Program waivers, improvements, and adjustments to the GSC goal-setting methodology and other program functions; have substantive input in the contract specification review process to ensure that contract bid specifications are not unnecessarily restrictive or unduly burdensome to small, local, minority-owned, women-owned, and other businesses; receive and analyze external and internal information, including statistical data and anecdotal testimonies, it deems appropriate to effectively accomplish its duties; subject to Title 4 {“Administrative Procedure Act – Regulations”} of the <cite data-path="|general">City General Provisions Article</cite>, adopt rules and regulations to carry out this chapter; and where appropriate, make recommendations for approval of changes to established size standards for SLBE firms. Ord. 16-595 Text Conformed 02/14/21 By authority of Ordinance 20-431, Section 5, the Director of Legislative Reference, in consultation with the Law Department, has conformed the text of item (5) of this section to refer expressly to the requirements of the recently-enacted Administrative Procedure Act that, effective January 15, 2021, governs the proposal, adoption, and publication of administrative rules and regulations.

The Chief must appoint 5 goal-setting committees to assist in the administration of the SLBE Program. A separate committee must be established with responsibility for each of the following industry categories:architectural and engineering; construction; professional services; services; and materials, supplies, and equipment. Each GSC is chaired by the Chief or the Chief’s designee. The Chief determines the number of members on each GSC at the time of its establishment. Each GSC must include representatives from the Office and from the primary contracting agencies and end-user agencies for the committee’s industry category. The Chief must appoint the remaining members of the GSC from the City’s procurement personnel and other City departments affected by this Program. Each GSC may meet as often as necessary to accomplish its duties, but not less than twice annually. Ord. 16-595

For its industry category, each GSC must:establish SLBE participation goals; and select appropriate SLBE affirmative procurement initiatives to be applied to each contract, subject to § 28-97(b). In making its decisions, the GSC must consider:vendor availability; industry characteristics; and project-specific characteristics. Each committee may also review the regulations issued to implement this chapter and provide the Chief with general advice on administering the policy and modifying the policy objectives of the SLBE Program. Ord. 16-595

The Chief must submit an annual report to the Mayor and City Council that provides an assessment of:the progress towards achieving the goals established for awards to certified SLBE and certified Emerging SLBE firms; both dollars awarded and expended through the SLBE Program; and the progress towards achieving the stated Program objectives, including:enhancing competition; establishing and building new business capacity; and removing barriers to the utilization of available minority business enterprises, women business enterprises, and small local business enterprises on City contracts. At least once every 2 years, the City Council must conduct a public hearing to solicit public comments on the SLBE Program. The Board of Estimates, or its designee, must periodically review the SLBE Program to determine whether the various contracting procedures used to enhance SLBE contract participation need to be adjusted or used more or less aggressively in future years to achieve the goals stated in § 28-97 {“Purpose; Scope”} and <cite data-path="|5|§28-98">§ 28-98 {“Program objectives”} of this chapter</cite>. Ord. 16-595 Ord. 17-068

To be eligible for certification as an SLBE, the business enterprise must:be an independently owned and operated business enterprise that is not a broker, that is not a subsidiary of another business, and that is not dominant in its field of operation; have owners who are actively involved in day-to-day management and control of the business; perform a commercially useful function; not have employed more than 50 full-time persons at any time during the last 3 years; have annual gross revenues, as averaged over its most recent past 3 fiscal years or, if the business has not existed for 3 years, over the course of the existence of the business, of not more than:$5 million for construction firms, specialty trade contractors, and manufacturing firms; $2.5 million for architectural firms; $1.5 million for professional services firms; $1.25 million for engineering firms; or $1 million for firms providing other services, materials, or equipment, except for manufacturing firms; and have a principal place of business in Baltimore City; have:been established for at least 1 year; or managing principals of the business who each have at least 3 years of relevant experience prior to forming or joining the business; and in the year preceding the date of the initial certification application, not have received more than $1,000,000 in City contract payments as a result of contract awards from the City achieved through an open competitive bidding process. A business firm is not eligible to become a certified SLBE if it is owned by:other businesses that cannot themselves qualify under the SLBE eligibility requirements in subsection (a) of this section; or the principals or owners of other businesses that cannot themselves qualify under the SLBE eligibility requirements in subsection (a) of this section. A business firm that has graduated from the SLBE Program under § 28-109 {“Graduation[, etc.]”} is no longer eligible to participate in the SLBE Program even if it otherwise meets all other eligibility criteria. Ord. 16-595

In order to apply for certification or recertification as an SLBE, an enterprise must provide the Office with:a completed certification or recertification application in the form required by the Office; all supporting documentation required by the Office; and a signed affidavit stating that it meets all of the SLBE eligibility criteria set forth in § 28-105 {“Eligibility for SLBE Program”}. Certified SLBEs must submit a completed recertification application to the Office every 2 years for review and continued certification. After receiving an SLBE certification or recertification application, the Office must review all enclosed forms, affidavits, and documentation to make a prima facie determination as to whether the applicant satisfies the SLBE eligibility requirements as set forth in this chapter. If, after the review required by this section, the Office finds that the applying firm satisfies the SLBE eligibility requirements as set forth in this chapter, the Office must grant the firm certified SLBE status. If an applicant is determined to be ineligible for certification as an SLBE, the Chief must send a letter to the applicant stating the basis for the denial of eligibility. Applicants determined to be ineligible are not eligible to submit a new application until at least 1 year after the date of the notice of denial of eligibility. Joint ventures must be certified on a bid-by-bid basis. A joint venture seeking certification is not itself subject to the size limitations imposed by § 28-105(a)(4) and (a)(5). Each individual business participating in the joint venture must be a certified SLBE in order for the joint venture to receive the benefits of the SLBE Program. In the course of considering the certification or recertification status of any SLBE firm or joint venture, the Office must periodically conduct audits and inspect the office, job site, records, and documents of the firm, and interview the firm’s employees, subcontractors, and vendors as reasonably necessary to ensure that all eligibility standards are satisfied and that the integrity of the SLBE Program is maintained. Ord. 16-595 Ord. 17-068

A firm is eligible for certification as an Emerging SLBE if it meets the following eligibility criteria:the firm complies with all of the SLBE criteria set forth in § 28-105 {“Eligibility for SLBE Program”}; the firm has been in existence for less than 5 years; the firm has no more than 5 full-time employees; and the firm’s annual gross revenues, as averaged over the life of the firm, are less than $1 million. In order to apply for certification or recertification as an Emerging SLBE, an enterprise must provide the Office with:a completed application for certification or recertification in the form reqauired by the Office; all supporting documentation required by the Office; and a signed affidavit stating that it meets all of the eligibility criteria set forth in subsection (a) of this section. After receiving an Emerging SLBE certification or recertification application, the Office must review all enclosed forms, affidavits, and documentation to make a prima facie determination as to whether the applicant satisfies the Emerging SLBE eligibility requirements as set forth in this chapter. If, after the review required by this section, the Office finds that the applying firm satisfies the Emerging SLBE eligibility requirements as set forth in this chapter, the Office must grant the firm certified Emerging SLBE status. If an applicant is determined to be ineligible to participate as an Emerging SLBE, the Chief must send the applicant a letter stating the basis for the denial of eligibility. Applicants determined to be ineligible are not eligible to submit a new application for Emerging SLBE certification for 1 year after the date of the notice of denial of eligibility. Applicants determined to be ineligible for certification as an Emerging SLBE may still be eligible for certification as an SLBE. Ord. 16-595 Ord. 17-068

An SLBE firm must be permanently graduated from the SLBE Program after it has received a cumulative total of $5 million of City-funded prime contract or subcontract payments in at least 5 separate contracts since its initial certification as an SLBE firm. An SLBE firm must be permanently graduated from the SLBE Program after its 3 fiscal year average gross sales exceeds the size standard eligibility requirements. An SLBE firm must be temporarily suspended by the Chief for the balance of any fiscal year after it has received, as contractor or subcontractor of City-funded contracts, a cumulative total of $1.5 million in payments for that fiscal year. An SLBE or Emerging SLBE firm may have its certification and eligibility permanently revoked by the Chief if it:fails to perform a commercially useful function under a contract; or allows its certified SLBE status to be fraudulently used for the benefit of a non-SLBE firm or the owners of a non-SLBE firm so as to provide the non-SLBE firm or firm owners benefits from affirmative procurement initiatives to which they would not otherwise be entitled. An Emerging SLBE firm must be permanently graduated from Emerging SLBE status after it has received a cumulative total of $2.5 million of City-funded prime contracts or subcontract payments in at least 5 separate contracts since its initial certification as an Emerging SLBE firm. An Emerging SLBE firm must be permanently graduated from Emerging SLBE status once its 3 year average annual gross sales exceeds $2 million. An Emerging SLBE firm must be temporarily suspended from Emerging SLBE status by the Chief for the balance of any fiscal year after it has received, as a contractor or subcontractor on City-funded contracts, a cumulative total of $750,000 in payments for that fiscal year. An Emerging SLBE firm suspended under this subsection may still be eligible to continue participating in affirmative procurement initiatives as an SLBE firm for the remainder of the fiscal year. This section is not intended to require or allow the City to terminate a contract or fail to renew a contract solely due to the finding that a firm’s SLBE or Emerging SLBE status is permanently graduated or temporarily suspended during the contract term, including all renewal options originally available. Bids or proposals submitted by an SLBE or Emerging SLBE prior to graduation or suspension may be awarded as if the firm retained its SLBE or Emerging SLBE status. An SLBE or Emerging SLBE may not participate as an SLBE or Emerging SLBE on new bids during a period in which it has been permanently graduated or temporarily suspended, and will not receive any preference for which it may have previously been qualified. If SLBE or Emerging SLBE status is revoked under subsection (c) of this section, the Board of Estimates may, upon recommendation by the contracting agency, terminate or fail to renew an impacted contract, if the Board of Estimates determines that termination or non-renewal is in the best interests of the City. Permanent graduation and temporary suspension is only effective upon receipt of written notice, as an adverse certification or eligibility determination. Ord. 16-595

All adverse certification or eligibility determinations by the Office or Chief 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 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. 16-595

To promote the award of City contracts to SLBEs or Emerging SLBEs, each GSC may, subject to § 28-97(b), authorize the use of any or all of the SLBE affirmative procurement initiatives in this Part IV for contracts in its industry category. Ord. 16-595

Subject to applicable federal and state law, as well as <cite data-doc="City of Baltimore, Md., Charter">the City Charter</cite>, and applicable regulations, policies, and procedures, the Board of Estimates, on the recommendation of the contracting agency, may waive or reduce the bonding or insurance requirements for public works contracts, depending on the type of contract and whether the contracting agency determines that the bonding or insurance requirements would deny an SLBE, or Emerging SLBE, an opportunity to perform a contract that the SLBE or Emerging SLBE has shown itself otherwise capable of performing. From time to time the Chief shall make written suggestions to a contracting agency relating to concerns about bidding restrictions caused by bonding or insurance requirements on solicitations issued by that agency. Subject to applicable federal and state law, as well as <cite data-doc="City of Baltimore, Md., Charter">the City Charter</cite>, and applicable regulations, policies, and procedures, the Board of Estimates, on the recommendation of the Department of Finance, may waive or reduce the bonding or insurance requirements, depending on the type of contract and whether the Department determines that the bonding or insurance requirements would deny an SLBE or Emerging SLBE an opportunity to perform a contract that the SLBE or Emerging SLBE has shown itself otherwise capable of performing. From time to time the Chief shall make written suggestions to the Director of Finance relating to concerns about bidding restrictions caused by bonding or insurance requirements on solicitations issued by the Department of Finance. Ord. 16-595 Ord. 17-068

Subject to § 28-97(b), the Board of Estimates may award a contract to a certified SLBE or certified Emerging SLBE that submits a bid within 10% of a low bid by a non-SLBE. A price preference may not be applied if:the award to the SLBE would result in a total contract cost that is, on an annual basis, more than $25,000 higher than the low bid; if the total contract cost would exceed the City’s budgeted funding for the contract; or the total contract cost is determined by the contracting agency, with concurrence from the agency receiving the primary benefit of the contract, to be so high in price as to be not reasonable. Ord. 16-595

The City may reserve up to 10% of the total points available for RFP evaluation purposes for firms that are certified as SLBE or Emerging SLBE firms, or to joint ventures that have certified SLBE or certified Emerging SLBE partners. For joint ventures, available evaluation preference points must be allocated on a pro rata basis, based on the percentage of SLBE or Emerging SLBE participation in the overall ownership, performance, and management of the joint venture. An evaluation preference may not be applied if the resulting total contract cost:would exceed the City’s budgeted funding for the contract; or is determined by the contracting agency, with concurrence from the agency receiving the primary benefit of the contract, to be so high in price as to be not reasonable. Ord. 16-595

A GSC may, on a contract-by-contract basis, at its discretion, require that a predetermined percentage of a specific contract, up to 40%, be subcontracted to certified SLBEs or to certified Emerging SLBEs. If the contractor is a certified SLBE or certified Emerging SLBE, then the contractor is entitled to count the dollar value of the work performed by its own forces towards satisfaction of the mandatory subcontracting goal for that contract. An SLBE or Emerging SLBE contractor may not subcontract more than 49% of the contract value. An SLBE or Emerging SLBE subcontractor may not further subcontract more than 10% of its portion of the contract value to a vendor who is not an SLBE or Emerging SLBE. For a contract bid out under this section, a prospective bidder must submit, at the time of bidding, a form providing the name of the SLBE or Emerging SLBE subcontractor or subcontractors and describing both the percentage of subcontracting by the SLBE or Emerging SLBE and the work to be performed by the SLBE or Emerging SLBE. At the time of bidding, a bidder may request a full or partial waiver of this mandatory subcontracting requirement from the Chief for good cause, by submitting an SLBE unavailability certification to the Chief along with adequate documentation of good faith efforts to obtain SLBE participation, in the form required by the Office. The Chief must base his or her determination on a waiver request on the following criteria:whether the requestor of the waiver has made good faith efforts to subcontract with qualified and available SLBEs or Emerging SLBEs; whether subcontracting would be inappropriate or not provide a commercially useful function under the circumstances of the contract; and whether there are no certified SLBE or certified Emerging SLBE firms that are qualified and available to provide the goods or services required. In the absence of a waiver, failure of a contractor’s bid or proposal to satisfy the mandatory SLBE subcontracting goal renders its bid or proposal non-responsive. In the absence of a waiver, failure of a contractor, in the performance of the contract, to attain a mandatory subcontracting goal for SLBE participation is grounds for termination of existing contracts with the City, debarment from performing future City contracts, or any other remedies available under the terms of its contract with the City or under the law. A Contractor commits a material breach of contract if it fails to notify and obtain written approval from the Chief in advance of any negative change in usage of a designated SLBE or Emerging SLBE subcontractor, including any:reduction in subcontract scope; termination of a subcontract; or substitution of a new SLBE or Emerging SLBE subcontractor for a designated SLBE or Emerging SLBE. Sole source and emergency contracts are exempt from subcontracting goal requirements under this section. Ord. 16-595 Ord. 17-068

The Chief and a contracting agency may select certain contracts that have a contract value of $250,000 or less for award to a certified SLBE, or a joint venture with a certified SLBE, through the Sheltered Market Program. The Chief and a contracting agency may select certain contracts that have a value of $50,000 or less for award to a certified Emerging SLBE firm through the Sheltered Market Program. In determining whether a particular contract should be bid through the Sheltered Market Program, the contracting agency and Chief must consider:whether there are at least 3 certified SLBEs or certified Emerging SLBEs that are available and capable to participate in the Sheltered Market Program for that contract; the degree of underutilization of the SLBE and Emerging SLBE contractors in the specific industry categories; and the extent to which the City’s SLBE and Emerging SLBE contractor utilization goals are being achieved. A contract may be removed from the Sheltered Market Program for purposes of rebidding if:a responsive and responsible bid or response is not received for the contract; or the apparent low bid is determined by the contracting agency, with concurrence from the agency receiving the primary benefit of the contract, to be so high in price as to be not reasonable or not within the City’s budgeted funding for the contract. A finding made regarding the number of available certified SLBE’s or Emerging SLBE’s in determining whether a contract should be bid through the Sheltered Market Program for purposes of subsection (b) of this section does not create a presumption that any bidder is a responsible bidder for purposes of subsection (c) of this section. The determination of a contracting agency, or the City’s prequalification process, that a bidder is not a responsible bidder for purposes of subsection (c) of this section is final and conclusive. Ord. 16-595 Ord. 17-068

If an industry category routinely has too few sources of bidders to provide meaningful or sufficient competition for City contracts, the Chief, with the concurrence of the impacted contracting agency, may reserve certain contracts within that industry category for placement into a competitive business development demonstration project to encourage the development of new capacity within the industry to competitively bid on the future supply of specialized goods or services to the City. Contracts reserved for Competitive Business Development Demonstration Projects are subject to a Request for Proposals process open only to joint ventures between an established firm, or experts in the relevant industry, and a certified SLBE firm. The scope of work for the selected joint venture must include teaching a hands-on curriculum to SLBE firms that have expressed an interest in diversifying into the relevant industry, in addition to performing the customary functions of the contract. The curriculum required by paragraph (2) of this subsection must teach skills required to qualify for future City contracts and to successfully compete in the industry, including both:technical skills taught through hands-on demonstrations of how to perform necessary tasks in the field; and administrative skills such as cost estimating, bidding, staffing, or project management. The Chief must select certified SLBE candidate firms for participation in competitive business development demonstration projects on the basis of an assessment of their current capabilities and their likely success in diversifying into the new relevant industry once given technical assistance, training, and an opportunity to develop a performance track record in the industry. Ord. 16-595