Tips for Evaluating Good Faith Efforts Tim Bullivant Contract Evaluation Branch Manager Caltrans Office of Business and Economic Opportunity Contract Award Award contract to lowest responsive bidder 49 CFR 26.53 (a) When you have
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Presentation Transcript
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Tips for Evaluating Good Faith Efforts Tim Bullivant
Contract Evaluation Branch Manager
Caltrans Office of Business and Economic Opportunity<br>
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Contract Award Award contract to lowest responsive bidder<br>
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49 CFR § 26.53 (a) When you have established a DBE contract goal, you must award the contract only to a bidder/offeror who makes good faith efforts to meet it. You must determine that a bidder/offeror has made good faith efforts if the bidder/offeror does either of the following things:
(1) Documents that it has obtained enough DBE participation to meet the goal; or
(2) Documents that it made adequate good faith efforts to meet the goal, even though it did not succeed in obtaining enough DBE participation to do so. If the bidder does document adequate good faith efforts, you must not deny award of the contract on the basis of that bidder failed to meet the goal. See Appendix A of this part for guidance in determining the adequacy of a bidder’s good faith efforts.<br>
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Appendix A to Part 26 Guidance Concerning Good Faith Efforts is in 49 CFR part 26, Appendix A. To view the regulation go to:
https://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/dbe-regulations<br>
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DBE Commitment Documents<br>
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DBE - Good Faith Effort Documentation<br>
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49 CFR Appendix A: 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 DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements.<br>
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Elements of a GFE Evaluation DBE commitment
Work made available to DBE firms
Solicitation effort documentation
Advertisements for DBE participation
Initial search efforts
Follow-up solicitation efforts
Interest from DBEs to meet the goal
Offers of Assistance (bonding, plans, specs) Rejected DBEs
Other Bidders
DBE Commitments
Good Faith Efforts<br>
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1. DBE Commitment The Closer the Bidder is to meeting the Goal, the less scrutiny is applied to their good faith efforts.
If the bidder is within 1% of meeting the goal, a brief review of good faith efforts may be sufficient.
When the DBE commitment is significantly below the goal, a fuller review is expected.<br>
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2. Work Made Available to DBEs A minimum of 30 percent of the contract must be performed by the Prime Contractor.
Check work made available on advertisements and solicitations to calculate the dollar amount made available to DBEs.
Are there interested DBE contractors, located in the Caltrans District of the project, certified to perform the work made available by bidder? Check California Unified Certification Program DBE Database (CUCP).<br>
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2. Work Made Available Is this a Good Faith Effort? Total DBE commitment: 0.00%
Contract DBE: 7.0%
Total work made available: 11.9% > 7.0%
Like to see more work made available by bidder!<br>
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3. Solicitations Did bidder contact those interested in the work?
Did the bidder use the CUCP website?
If the bidder is not receiving enough DBE responses, are they continuing to solicit DBEs? Did they solicit all DBE subcontractors in the area of the work?
Did the bidder allow sufficient time for the DBE to respond?
Prior to the bid opening, did the bidder have enough interest from DBEs to meet the contract goal?
Did the bidder adequately document the aforementioned?<br>
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3. Solicitations Is this a good faith effort?<br>
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4. Rejected DBE documentation Did bidder provide name of DBEs who provided quotes on job? Was it documented?
Did bidder provide reason for rejecting a DBE’s quote?
If rejected for price, was the price difference excessive or unreasonable?
Did the bidder reject a DBE as unqualified without giving reasons?<br>
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5. Other Bidders’ Commitments The reviewer must take into account the performance of all other bidders. See 49 CFR part 26, Appendix A, V.
When the apparent low bidder fails to meet the contract goal, but the others meet it, you may reasonably raise the question of whether, with additional efforts, the apparent low bidder could have met the goal.
Verify the commitments (certified as a DBE to perform the listed work, proper DBE credit given, DBE verifies commitment, DBE has sufficient forces to perform the work).
Consider the commitment of another bidder even if they are non-responsive.<br>
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5. Other Bidders’ Commitments Which Bidder has a problem? Contract 1
Goal: 10%
Low bidder: 2% commitment
2nd low: 10%; 3rd low: 8% Contract 2
Goal: 10%
Low bidder: 9% commitment
2nd low: 10%; 3rd low: 8%<br>
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Determination (1 of 4) Your Final Determination should consider the following factors:
“All necessary and reasonable steps” to meet the DBE contract goal. 49 CFR 26 Appendix A(I)
“Quality, quantity, and intensity” of efforts to meet the DBE contract goal. 49 CFR 26 Appendix A(II)
“Actively and aggressively” trying to meet the DBE contract goal. 49 CFR 26 Appendix A(II)<br>
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Determination (2 of 4) Do not use a checklist
Do not use a point system
GFE reviews are based upon qualitative analysis of the documentation provided by the Prime Contractor.<br>
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Determination (3 of 4) How to Not Get Sued
Be able to explain how you evaluate GFE Process
Document your Processes and Procedures
Can you explain your determination if it went to court?<br>
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Determination (4 of 4)<br>
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Administrative Reconsideration If a GFE has been found to be inadequate and the award to the bidder has been rejected, the “bidder/offeror must have an opportunity to meet in person with your reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so.” 49 CFR 26.53(d)(3)<br>
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Resources https://www.transportation.gov/osdbu/disadvantaged-business-enterprise/official-faqs-dbe-program-49-cfr-23
(FTA Regulations)
https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=8d49c535a1608c98d3e13fe938e0200f&ty=HTML&h=L&r=PART&n=pt49.1.26#se49.1.26_155
(49 CFR 26.55 How is DBE participation counted toward goals?)
http://www.dot.ca.gov/hq/bep/find_certified.htm
(CUCP – DBE Database)
https://www.census.gov/cgi-bin/sssd/naics/naicsrch
(North American Industry Classification System [NAICS] code lookup)<br>
