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Non-Building Construction Projects 04/02/2020Non-Building Construction FY2020 V1 (04/02/2020) Page 1 METROPOLITAN ST. LOUIS SEWER DISTRICT BUSINESS DIVERSITY MBE Utilization and Workforce Program Non-Building Construction Projects Effective April 2, 2020 PURPOSE The Metropolitan S t. Louis Sewer District (MSD or District) will provide opport unities for the meaningful participation by Minority Business Enterprises (MBE ) and for minority and women workforce on Building Construction Pro jects performed for the District. The Purpose of this procedure is to establish guidelines for compliance with the Diversity Program for MBE participation by applicable vendors, bidders, contractors, service providers and any person, corporation, business, or other e ntity performing a Commercially Useful Function (CUF) whi le doing business with the District on Non-Building Construction Projects. This procedure also establishes guidelines for workforce participation compliance. MBE UTILIZATION Certified MBE’s participating on an MSD contract, regardless of the procurement type, are required to perform a Commercially Useful Function (CUF) in fulfillment of a n awarded contract. Certified MBE’s listed for performance on any contract to meet MBE goals are subject to all conditions of compliance monitoring throughout the duration of the contract. The purpose of CUF r equirements is t o ensure that Primes perform their due diligence to utilize MBE firms that are ready, willing and able to perform specific work for which they are qualified , certified and authorized to perform, a ccording to the terms a nd conditions as set forth in the contract. Work performed by an MBE on MSD contracts must be consistent with industry practices and other relevant conside rations and has a necessary and useful role in the transaction (i.e., the firm’s role cannot be a superfluous step added to a project in a n attempt to obtain credit towards meeting MBE goa l requirements). CUF requirements also exist to prevent, to the extent possible, MBEs from being utilized as a “pass through” or “front” for a prime contractor or another subcontractor. A commercia lly useful function occurs when the MBE firm has the sole responsibility for execution of the specified scope identified in their contract and performs responsibly by managing and supervising all aspects of the work involved with respect to ordering all materials, equipment, supplies, negotiating price, determining quality a nd quantity, installing (where applicable), and payment for its own materials, supplies, equipment and labor without requirements for two-party payments. If in the District’s judgment, the MBE (even if certified) does not perform a commercially useful function in performance of a the scope of work specified in the contract, the Prime credit towards meeting stated MBE goals will not be counted. When a MBE firm is the manufacturer of materials provided for performance on the contract, or the MBE firm is provid ing labor in performance of a scope of services that is a necessary requirement for the contract, the MBE firm will genera lly be considered as CUF, however all labor must be tied to a specific project scope identified on MSD Form A . Special Provision for Acceptance of Two-Party Checks (Only for Joint Check Payment of Fringe Benefits) The following provision only allows for Primes to make joint payments (two-party check made payable to an MBE firm and a third party benefit provider) for fringe benefits (pension, welfare, vacation, training, or other fringe benefit) that are due to benefit providers while employees are performing work on an MSD contracted job if the subcontractor is in an arrears status at the time of contract award, has been in an arrear status at any time within Non-Building Construction FY2020 V1 (04/02/2020) Page 2 the most recent 24 month period, or becomes in arrears prior to completion of their portion of the contract work during the project with any of their payments of fringe benefits. The District must receive written notice signed by the MBE firm, Prime and third party benefit provider of the arrangement prior to the start of work or when such agreement is made necessary by failure of subcontractor to pay benefits during the course of the subcontract . Prime contractors would receive full credit for the two-party payments with submission of copies of the paid checks (front and back) as verification of the payment and validation list of employees for which the payments are made with final validation (via submitted certified payrolls) that these employees worked on the MSD project. The third party benefit provider shall also agree not to seek garnishment of any payments owed by the contractor to the subcontractor for this project. A. MBE Subcontracting Requirements 1. The Metropolita n St. Louis Sewer District (District) has established a subcontracting MBE (African American ) goal of 17.00% utilization for Non-Building Construction contracts in the amount of $50,000 or more. Exceptions will be noted in the contract doc uments, when required. 2. A bidder who has achieved the 1 7 . 0 0 %participation for MBE utilization as defined herein will be in compliance with the re quirements of this specifica tion. A bidder who cannot achieve the 17.00% MBE (African American utilization goa l must provide a ll proof via documentation, as prescribed i n paragraph C.4. to demonstra te that good faith efforts were initiated and performed prior to bid submittal consisting of efforts undertaken to achieve the MBE goal. If in the sole judgment of the District, t he bidder does not demonstrate sufficient evidence that good faith efforts were performed, the bid will be rejected as non- responsive. 3. The term Minority Business Enterprises (MBE) refers to: A Minor ity Business Ente rprise (MBE) is defined as a business that is at least 51% owned, operated and controlled by a minority or minority group me mbers, who are citizens of the United States. “Controlled” mea ns that the minority owner(s) must exercise actual day-to-day management of the business. For this procedure t he only minority groups that will count towards meeting goals for MBE vendor utilization are certified African American. 4. As prospective MBE participants on this project, MSD will only accept those MBE firms possessing a current valid certification issued by an approved certifying agency at the time of bid. The MBE ’s certification issued by an approved certifying agency must identify the MBE’s certification with a valid North American Industry Classification System (NAICS) Code or Segment Code indicating the type of service and/or materials for which they are proposing to be utilized as a sub contractor by at least one or more of the following agencies on or before the date of the bid opening: ▪ Missouri State Office of Equal Opportuni ty ▪ City of St. Louis (Only MBE and WBE Certifications) *Note: MSD does not accept reciprocity certifications issued by other certifying agencies. Non-Building Construction FY2020 V1 (04/02/2020) Page 3 5. MBE Subcontractor Advance Payments An amount will be paid to the Prime contractor for the purpose of making advance payment to eligible subcontractors in anticipation of the subcontractor’s mobilization to the jobsite. Payment to MBE subcontractors shall only apply to subcontractors in the category of “Material/Supplies incl uding Labor or Installation” and/or “Service Provider/Installer” as listed on MSD Form A at the time of Bid, and as confirmed by the District. Please refer to the General Conditions or Project Technical Specifications for additional Advance Payment informa tion. B. Pre-Contract Award Obligations: 1. For bids that do not meet the MBE participation goal, a properly signed bid must certify that the bidder has undertaken the good fait h efforts described in this MBE guideline procedure to achieve the stated goal for M BE participa tion. For all other bidders, it is mandatory for each bidder to submit MSD Form A with their bid for consideration of MBE subcontractors to be utilized to fulfill goal requirements. All other MBE participation information including but not limited to attachments to For m A, Form B, and all attachments and information required to demonstrate good fait h efforts (if needed) must also be submitted to MSD with the original bid at the due date a nd time specified. Failure to submit any of the required information (on MSD Form A, MSD Form B, or for “Good Faith Efforts”) will result in the bid being rejected as non- responsive. 2. To establish a bid as responsive, the bidder must document on MSD Form A the proposed utilization and tier level of participation of all MBE participants to be utilized for achievement of the stat ed goals, and/or docume nt on MSD Form B the good faith efforts expended by the bidder to utilize MBE participants. The documentation requirements are outlined in C.4, a-f below. For the purpose of determining the degree of goal attainment through M BE subcontractor joint ventures, MBE subcontractors, MBE ma nufacturers, MBE distributors, MBE suppliers, and MBE brokers, the following methodology will be utilized: a. Any Joint V enture S ubcontractor consisting of a certified MBE and majority non-certified business enterprise, but functioning as a singular joint entity, w ill receive MBE participation credit only for the MBE’s participation based upon a percentage of the dollar amount of the work performed by the MBE entity. Only the verifiable dollar amount as defined in paragraphs c. thru h. below will be allowed to count towards MBE participation goals. b. MSD allows Mentor/Protégé relationships consisting of a certified MBE and majority non-certified business enterprise; however, participation credit will be based solely on the Commercial Useful Function activities performed by the MWBE subcontractor. Only the verifiable dollar amount as defined in para graphs B.4 – B.6 below will be allowed to count towards MWBE participation goals. c. All bidders including certified Prime M BE’s must achieve the required 17.00% MBE (African American) subcontract utiliz ation goal by obtaining the additional participation from certified MBE’s. d. A contractor or subcontractor who has an ownership stake (at any level) in another business entity (whether a s a parent or subsidiary) may not use that organization for purposes of meeting goal requirements in a subcontracting capacity on a MSD project. MBE participation must be obtained through utilization of a n independe nt, certified MBE (African American) contractor with no ownership affiliation to the contractor or subcontractors in the hiring capacity. Non-Building Construction FY2020 V1 (04/02/2020) Page 4 3. Bidders will be credited 100% for qualified MBE participation of the dollar amount for purchases made from certified MBE (Africa n Ame rica n) subcontractors for work performed at the jobsite, but may include limited situations where the sub-contracting activity relative to the work being performed on the contract is performed at a n off-site location but meets the CUF needs of the project (i.e. reinforcing steel mats tied at a yard and then shipped to the jobsite, painting of structural steel, etc.), subject to approval by MSD’s Diversity Division. 4. Any bidder will be credited with MBE participation for 100% of the dollar amount of purchases made from: ▪ MBE manufacturers who opera te or maintain a facility and/or establishment with a manufacturing business that produces on site materials, supplies, items and/or equipment per spec ification documents; or ▪ MBE distributors/suppliers contracted with a manufacturer to distribute products and who will in fact provide qualified installation services of the manufactured or distributed supplies/materials for which they are authorized to sell or distribute. ▪ The MBE distributor /supplier must be engaged in marketing, sales, warehousing, distribution, and delivery for the manufacturing entity. ▪ MBE participation propos ed under this category shall require the following attachments to Form A: o Evidence that the MBE is certified within the identified manufacturing industry; o Product specifications; MBE’s location of ma nufacturing operations; o Address of MBE’s product marketing, sales, warehouse, distribution; and o Evidence of MBE’s proposed installation services on the contract. 5. Any bidder will be credited with MBE participation of 20.0% of the dollar amount of purchases made from: ▪ MBE distributors and/or suppliers possessing a manufacturer’s contract or agreement and engaged in the sales, warehousing, and distribution of materials and/or supplies. ▪ MBE participation pr oposed under this category shall require as an attachment to Form A identification of the address where the sales, warehousing, and distribution activities occur. 6. Any bidder will be credited with MBE participation of 3.0% of the dollar amount of purchases made from: ▪ MBE providers of material s and supplies who act as a broker or dealer and who do not satisfy the requirements for a ny of the a bove categories must be certified as a broker or dealer in accordance with the requirements of and by one of the acceptable agencies listed in paragraph A.4. above. 7. A MBE subcontractor may be used for participation at any tier provided the bidder identifies the “tier” level of utilization for the subcontractor on MSD Form A. All MBE certifications are verified during bid evaluation that the MBE listed on Form A is certified and is in good standing with an acceptable Certifying Agency. For new MBE subcontractors that have not previously worked on MSD projects, or MBE’s proposing to perform a new scope not previously performed on a MSD project, MSD requires MBE to have a valid certification with the applicable NAICS or Segment Codes for the proposed scope. 8. Any non-certified subcontractor at any tier level will not count towards meeting a bidder’s MBE participat ion goals. Therefore, all tiers of MBE subcontractors are required to “substitute or replace” subcontractor participation onl y to other certified MBE subcontractors providing the same services in order to be counted towards meeting the MBE participation goals. Any deviation from this requires immediate notification to and approval by the District. Non-Building Construction FY2020 V1 (04/02/2020) Page 5 C. Evaluation of Goal Achieve ment 1. As a prerequisite, to demonstrate MBE goal achievement, the bidder must provide the following documentation with their bid: NOTE: MS D Form A must be used for this purpose. Failure to provide Form A with bid will result in a “Non-Responsive” determination for that bid . a. List the name of the Prime contractor; b. List the name of the certified MBE, Certification Agency and Ethnicity of the MBE; c. Indicate the tier level of participa tion for ea ch MBE; d. Identification of MBE’s participation tier level and eligibility for Advance Payment by checking the appropriate box indicating the percentage of participation for each MBE to be credited towards meeting MBE participation goal and to establish the MBE has a Commercially Useful Function on the project; e. Complete a description of materials/Service/Scope of Work for each MBE; f. List the total amount for each MBE’s participation in each MBE’s section; g. List the Subcontracting Total at the bottom of each Form A (use additional sheets if needed) to capture all participation for the bid. 2. For evaluation of bids, MSD reserves the right to request clarifications, conduct on-site interviews and/or inspections of the MBE’s listed on Form A at their place of business for purposes of verifying certification information presented at the time of bid and to determine if the MBE’s business is in compliance with MSD’s guidelines for MBE participation on the MSD project. 3. MSD reserves the right to not count dollar amounts presented on Form A to meet participation goals at the time of bid, if a bidder, at the request of MSD during the evaluation of a bid: 1) fails to validate or provide evidence that the MBE will perform a “Commercially Useful Function” on the project; or 2) fails to validate that the MBE is certified at the time of bid to provide the scope identified for the MBE on Form A. Based on the results of the bid evaluation, in the event there is a reduction or change in any dollar amounts for any MBE listed on Form A, the amount used to calculate a bidder’s final total amount of participation will be reflected in the final dollar and percentages and will determine if the goal was attained. Please note that reductions in the amounts listed on Form A could result in a bidder falling short of attaining the goal rendering the bid as “non-responsive” if acceptable “good faith efforts” as described in these guidelines are not successfully demonstrated. 4. For bids that do not meet the District’s stated MBE goal, the bidder must present documented proof of all “good faith efforts” under taken by the bidder to achieve the stated goal at the time of bid . For a bid to be considered responsive, efforts underta ken shall be concentrated and aggressive so as to reach the intended MBE targets for partic ipation throug h various means of outreach, personal contact, follow-up, and/or actual negotiation consultation with qua lified certified MBE firms. The bidder is required to submit MSD Form B with their bid along with their “good faith effort” documentation package. MSD Form B – P r e -A w a r d “Good Faith Effort” Documentation Requirements The following is a list of the minimum requirements (a thru f below) a bidder must complete in order to demonstrate they have exhausted all opportunities for inclusion of MBE participation on the contract being bid and are in compliance with meeting the minimum requirements for “Good Faith Efforts” in order to be found responsive. All efforts must be underta ken with specific targeting of MBE firms having skills or services releva nt to the project being bid and with “ready, willing and able” MBE’s to provide those skills or services. Any and all information submitted as validation of “good faith effort” activities will be subject to evaluation and verifica tion that the bidder actually performed the activities. Bidder must be able to provide details of quantities and estimates for the specific scopes of work or materials that MBE’s are requested to provide bids, proposals, or quotes for. Non-Building Construction FY2020 V1 (04/02/2020) Page 6 a. A minimum of two (2) advertisements must meet the following requirements: • Bidder must provide documented proof of all a d v e r t i s i ng efforts undertaken to extend opportunities to local certified MBE firms; advertisements must be targeted within locally distributed media so as to reach MBE’s who are certified in MSD’s service area . • Advertisements must be published at least fourteen (14) days prior to the bid due date. • Advertising Example s: local or regional minority trade association publications or newsletter s, minority-owned media specifically targeted to MSD’s service area, minority contractor associations, local community based publications located within the MSD service area, etc. • MSD requires verifiable, documented p roof of advertisements to be submitted with good faith effort documentation: i.e., copies of the advertisement containing verification of publication and dates published or publication affidavits. • Advertisements must solicit for specific services and/or scopes identified for MBE’s participation on the project that will serve a commercial useful function. • Only one (1) advertisement activity can satisfy the requirements identified in section “c” below for purposes of hosting a pre-bid meeting. • MSD will accept electronic forms of advertising with documented proof of website, dates of advertisement, validation of distribution to targeted M/WBE’s. b. Minimum outreach requirements to reach potential MBE’s for specific wor k being sought for the project: As a resource and to assist bidders with locating certified MBE’s, MSD’s Supplier Diversity Website (www.msdprojectclear.org) provides direct links to the acceptable certifying agencies with database s which provide access to the direct contact information of certified MBE’s for purposes of making contact with MBE ’s to solicit for quotes, bids, etc. However, it is the responsibility of the bidder to verify the current certification status, qualifications and experience of the MBE and the MBE’s ability to perform work or supply ser vices or materia ls as a MBE subcontractor on the bid. 1. Bidder must provide proof of documented contact with a minimum of two (2) Professional or advocacy organizations, each of which has capabilities to assist with the identification of potential certified MBE’s for subcontracting opportunities. Evidence of contact with the orga nization must be provided with good faith effort documentation. c. Bidder must advertise and host a Pre-Bid meeting, prior to bid completion, to reach qualified MBE’s. A Pre-Bid meeting agenda with sign i n sheets containing MBE’s contact information and signatures must be submitted with bidder’s “good faith effort ” documentation. Announcement of pre-bid meetings, including date and time, should be included in the bidder’s advertisement for the pre-bid. As an alterna tive, l o c a l Construction C ontractor A ssociations or the equivalent may advertise separa tely for a single location pre-bid meeting for numerous potential Prime Bidders and/or MBE firms. The prime contractor shall submit sign in sheets showing their attendance and documenting the attendance of MBE firms with good faith effort documentation. This will only satisfy one advertisements requirement for good faith efforts as stated in item a.6. above. As a second alternative for hosting a Pre-Bid meeting, Bidders will be allowed to hold a virtual Pre-Bid meeting to reach available MBE’s and WBE’s interested in pursuing opportunities to work on the project. Bidder is required to submit proof of Agenda, provide an attendance log and identify the method of outreach conducted to reach M/WBE’s. Non-Building Construction FY2020 V1 (04/02/2020) Page 7 d. Written Correspondence a nd Notifications: In order to provide verification of “good faith efforts”: 1. Bidder must provide copies of efforts to solicit bids and/or material quotes from qualified MBE’s through timely notifications to solicit business via written correspondence or letters. Any solicited materials must contain a valid confirmation receipt date or be postmarked a minimum of fourteen (14) calendar days prior to b id opening. Solicitations may be sent using the following methods with required proof submitted with good faith effort documentation: ▪ Registered or certified mail with a returned receipt required (postmarked and signed) with a copy of the correspondence provided to the District; or ▪ E-mailed notifications with acknowledgement by recipient or confirmation ▪ via returned “read” receipts, with a copy of the correspondence provided to the District; or ▪ Faxed documentation with acknowledgement by recipient or confirmation receipts, with a copy of the correspondence provided to the District; or ▪ Courier with proof of the MBE’s acceptance signature, with a copy of the correspondence provided to the District. 2. Verifiable proof of a ll such notifications must be sub mitted as confirmation of the bidder’s due dilige nce to secure qualified minority participants within MSD’s service area. 3. Bidder shall provide the source listing of MBE’s that was used to solicit bids. Bidder must attempt to contact an adequate number of certified MBE’s, whether sourced through MSD’s website (www.msdprojectclear.org) or an approved certifying agency’s database, must be contacted in releva nt work categories, as designated in the following table: Number of MBE’s in Relevant Work Category Minimum Number of MBE’s Contacted Based on Sourced Listing used to Solicit Bids Five or Less All Available MBE’s Six to 10 At Least Five MBE’s 11 or More At Least 50% of Available MBE’s e. Contracting in Good Faith with MBEs It is the bidder’s responsibility to s p e c i f i c a l l y identify sufficient portions of the project work that would result in attainment of the goal based on the bid submitted to the District. It is also the bidder’s responsibility to select and actually make available to MBE’s portions of wor k, materials, supplies, services, etc. consistent with providing opportunities to MB E firms so as to facilitate commercially useful MBE participation on the project. A Bidder who does not make sufficient participation available to MBE’s must provide acceptable justification as to why a sufficient amount of participation could not be subcontracted to MBE’s to attain the goals. A bidder using good busine ss judgment would consid er a number of factors in deciding to contract with MBE firms and would certainly take a firm’s price, capacity, past performance, experience and qualifications as well as project goals into consideration. Good faith effort include those additional steps taken to d o business with MBE’s such a s negotiations, one-on-one meetings, etc., the bidder takes beyond sending the initial request for Non-Building Construction FY2020 V1 (04/02/2020) Page 8 a quote to reach an acceptable agreement for participation with the MBE. The ability or desire of a bidder to perfor m the work on a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. A bidder is not, however, required to accept higher quotes/bids from MBE’s if the price is excessive or unreasona ble, however, MSD has the right to request additional clarification as to how pricing was the determining factor for rejection of an MBE’s quote/bid. f. Bidder must provide a justification statement specifically stating the reasons why the bidder could not attain the goals. The justification statement must describe in detail why all efforts undertaken to comply did not result in meeting the goal or substantiate in detail any other reasonable explanation to support the bidder’s position for not meeting the goal. g. The District will make a final determination of whether or not a bidder met the minimum requirements to be responsive based on bidder’s actions performed for items C.4., a-f and submission of verifiable documentation for paragraphs a-f above. Any omission of any portions of paragraphs a -f for “Good Faith Effort” will result in bidder being found non-responsive. D. Post Contract Award Requirement: 1. Within fifteen (15) calendar days after notice of award of the contract , MBE Verification Forms signed by all the MBE participants (and, if requested by the District, copies of all MBE related sub-agreements) signed by both the contractor and MBE subcontractors must be submitted to the District. If a bidder fails to submit the required information and documentation within fifteen (15) calendar days after notice of award, the District may withdraw the notice of award and the bid security of that bidder will be forfeited to the District. 2. When a Prime contractor is directed by Change Order to perform specific work exceeding $500,000 that is outside the limits of the original scope of the project, the Prime contractor will be obligated to meet the established 17.00% subcontracting utilization goal for Non-Building Construction contracts with MBE (African American) participation and meet workforce participation goal requirements as outlined in “Workforce Requirements” herein. This obligation shall be separate from the Prime contractor’s original obligation as committed to at the time of bid and subject to meeting all other Diversity compliance requirements. Prime contractor may propose the use of MBE subcontractors (as appropriate) who are already participating on the contract or use new MBE subcontractors for the change order work. All Change Order utilization must be submitted on MSD Form A. 3. MBE Utilization on Emergency Contracts: MSD has established “Guidelines for the Development and Maintenance of an Emergency Contractor List” which states Contractor Requirements for providing the District with a list of the MBE subcontractor/vendors that the Contractor is committed to utilizing to the extent practical based on the emergency scope of work, the availability of the subcontractor(s) and the reasonableness of the subcontractor’s cost proposal. E. Contractual Compliance Req uirements: 1. For the purpose of validating Diversity compliance on any MSD project, the District will perform one or more of the following: on-site monitoring; require proper validation of payments reported as made to participating MBE’s on the project; and conduct audits of records pertaining to the project in order to verify the participation of MBE’s performing work on the contract. Failure to respond to request for validation of payments in a timely manner can subject the Prime contractor to sanctioned withholding of project payments including but not limited to doing future work with the District up to and including a complete prohibition from performing work on any District project for a time period to be decided solely by the District. Non-Building Construction FY2020 V1 (04/02/2020) Page 9 2. During construction, for purposes of validating compliance for the utilization of hauling, trucking, or any delivery of material supplies requiring any level of transportation services, contractors may be required to submit Trucking Reports to validate participation amounts to be credited towards meeting goal requirements through submission of monthly Trucking Reports and/or additional documentation if requested. A contractor will be requested to provide Trucking Reports for the following: 1) Subcontractor lacks capacity to solely fulfill the full scope of contracted participation for the project; 2) Non-compliance activities observed during project monitoring and/or inspections of project. Failure to submit requested monthly Trucking Reports in a timely manner can subject the Prime contractor to sanctioned withholding of project payments including but not limited to doing future work with the District up to and including a complete prohibition fro m performing work on any District project for a time period to be decided solely by the District. 3. During construction , the contractor must submit monthly online utilization reports to the District or through the assigned project Construction Manager (CM) using the online MSD Diversity Reporting System. MS D will verify that the contractor has reported their monthly MBE and /or Non -MBE involvement participa tion upon r eceipt of each progress payment request until the Final Payment Applicat ion for the project is submitted. On months where there is no MBE activity, Prime contractor must still submit a report indicating no activity was performed for that month. Failure to submit monthly involvement reports in a timely manner can subject the Prime contractor to sanctioned withholding of project payments including but not limited to doing future work with the District up to and including a complete prohibition from performing work on any District project for a time period to be decided solely by the District. Monthly involvement reporting must be current in order for progress payments to be approved for payment. 4. Changes to the P r i m e contra ctor’s original or previously approved MBE utilization (MSD Form A) will only be considered by the District for one of the following reasons: a. The named MBE subcontractor is unable to meet the delivery requirements of the contract schedule. b. The named MBE subcontractor is dilatory in complying with the requirements of the contract documents. c. The named MBE subcontractor is prevented from performing due to bankruptcy, insolvency or circumstances related to the failure of the business. d. The type and amount of work to be performed by the MBE subcontractor is less than what the contractor could have reasonably assumed at the time of the bid. The Prime contractor must promptly report to the District, in writing, any proposed changes in the utilization of MBE subcontractors, and include appropriate written justification documentation, signed off by both the Prime contractor and the affected MBE. All contract modificati ons to any MBE participation and/or MBE scope of work requires an approved written District Change Order to the contract prior to final close out of a project . 5. Before final payment will be authorized by the District, , the Prime contractor must submit a MWBE Payment Verifica tion Confirmation Form (signed by both the contractor and the MBE subcontractor) for ea ch MBE subcontractor utilized on the project indicating the full amount paid to date. Prime c ontractor must indicate on the Verification Form whether this amount repr esents full or partial payment of all amounts owed to the MBE subcontractor. In a case where the total final payment to the MBE subcontractor cannot be made until the District makes its final payment to the contract or, the contractor sha ll also ind icate on the form the amount to be paid upon receipt of final payment from the District. Upon receipt of final payment from the District, and subsequent payment of any outstand ing pa yments owed to MBE subcontractor s, the contractor shall record final payment into Prism and submit a new M WBE Payment Verification Confirmation Form for each MBE subcontractor receiving such outstanding pa yment confirming their receipt of final payment. Non-Building Construction FY2020 V1 (04/02/2020) Page 10 6. In the event the contractor fails to conform to meeting its MBE obligations, the contractor must furnish to the District, in writing, the reasons for failure. If, in the sole judgment of the District, there have not been sufficient good faith efforts taken on the part of the contractor to meet its full contract MBE participation obliga tions, the District will advise the contractor, in writing, of corrective actions to be initiated. If the contractor fails to fully initiate the corrective actions in a timely manner, the District may withhold the equivalent amount, which should have been paid to the M BE(s), from any payments and /or institute appropriate actions pursuant to the provisions that have been incorporated into the contract specif ications. An equivalent a mount shall be defined as that portion of the MBE goal per party that was not met, as initially set forth o n MSD Form A or by an approved MSD contract change order agreeme nt . F. Disclaimer The District's implementati on of this MBE procedure and its requirements does not constitute any endorsement of any M BE. By submitting a bid to the District, the bidder agrees to hold harmless the District, its officers and employees, for all claims arising out of this bid or any contract connected thereto with regard to the diversity guidelines. WORKFORCE REQUIRE MENTS Non-Building Construction contracts in a n amount of $500,000 or greater require compliance with workforce participation goa ls during project construction as follows: A. Workforce Requirements • 30.00% Minority wor kforce participation per trade; • 7.00% Woman workforce pa rticipation per trade; • 40.00% Total minority and woman apprentices (for any apprentices used). Minority is defined as a ma le or fema le African Ame rican, Asian American, Hispanic American or Native Ame rican. B. Contractual Re quireme nts for Workforce 1. The Prime c ontractor must comply with all applicable workforce contractual requirements at the onset of all MSD projects. All “boots on the ground” workforce activity on a MSD project must be reported. This includes the workforces of both certified and non-certified subcontractors. a. At least fiftee n (15) days prior to mobilization Prime contractor is required to submit a 60 Day Project Workforce Plan to the District forecasting the a nticipated workforce utilization for the first 60 days of the project schedu le for the Prime contractor and a l l subcontractors providing any labor as a component of their scope of work who will ha ve workers on the project in the first 60 days of the project schedule. Contractor is required to use the appropriate “60 Day Workforce Plan Template” provided by MSD’s Diversity Department and located at the following website link: https://msdprojectclear.org/about/diversity/policies-forms/ Non-Building Construction FY2020 V1 (04/02/2020) Page 11 The following fields of information is required to be included in the plan: • Project Information • Name of ea ch worker • Trade/Craft of each worker • Gender of ea ch worker • Ethnicity of ea ch worker • Employment Status of each worker, i.e., New Hire, Union Hall Hire, etc. • Length of employment with the Prime contractor or subcontractor 2. In the event a project does not meet the workforce goal requirements at the onset of a project, the Prime c ontractor must also complete and provide a “Project Workforce Plan” schedule (also found at the website link listed above ) which identifies to the District plans for meeting the workforce goal requirements and in addition which demonstra tes the “good faith efforts” undertaken by both the Prime c ontractor and s ubcontractors to m eet the workforce requirements by the end of the project. To successfully demonstrate “good faith effort,” the following must be provided to the District: a. Monthly documented proof of contact with the resources listed below requesting availability of qualified workers must be provided to the District along with responses received to the request for diverse workforce from the following: • MSD’s Bud Training Program • Documented contact with union affiliates (if applicable); • Documented contact with an affiliated labor provider for trades utilized in performance of the MSD project. b. If a Prime contractor initially meets workforce goal s then begins to fall short of meeting goals during the course of a project and does not have an active workforce plan on file , the Prime contractor may then be requested to submit an A ction P lan w hich includes the ir intent to fulfill the contract workforce goals by the end of the project. When requested, the Action Plan must be provided with the Prime contractor’s next monthly workforce report submission. At a minimum, all good faith effort documentation submissions must include the following in order to be considered acceptable: 1. Initial requests to union affiliates (if applicable) for diverse applicant; 2. Initial requests to BUD for diverse applicant; 3. Response from initial request of 1 and 2; 4. Results of applicant referrals from 1 and 2; 5. Any other good faith efforts completed by the Prime contractor to fulfill workforce goals. 3. All actions of good fa ith must include the steps listed in 2. a-b above. Failure to meet these minimum obliga tions can subject the P r i me contra ctor to sanctions on doing future work wit h the District up to and including a complete prohibition from performin g work on any District projects for a time period to be decided solely b y the District. 4. Upon receipt of Prime contractor’s 60 Day Project Workforce Plan by the District, Prime contractor will receive acknowle dge ment via email that the Plan has been received and is under review. Within 5 business days of acknowledgement, contractor will receive a notice of acceptance or request for additiona l information. This process will continue until an acceptable plan is on file. The Prime contractor is prohibited from proceeding with any portion of the work having a workforce component until the Plan has been deemed acceptable by the District. Non-Building Construction FY2020 V1 (04/02/2020) Page 12 5. Monthly Wor kforce Repor ting Requirements: To be in compliance with MSD’s labor and workforce reporting requirements contractor m ust utilize M SD Diversity Reporting, Diversity’s online reporting system located at the following website link: www.msddiversityreporting.com. Prime c ontractor is required to submit monthly workforce utilization reports online by the 10th of each month for the previous month for all “Boots on the Ground” during the entire project. Certified Payrolls of actual utilization for the past month for the Prime contractor and all subcontractors performing work in the month being reported on must be submitted with reports . If the workforce goals have not been met, the report sha ll also include d ocumentation of specific “good faith efforts” performed in the past month as well as the pla nned a ctions to be taken by the contractor and the subcontractors to fulfill workforce contractual requirements. All workforce documentation can be submitted online through the MSD Diversity Reporting System. a. As part of its monthly workforce reporting, documented proof of “good faith effort” activities including initial contact documentation for requests of minority and women and ongoing contact with the programs listed above (2a) must be provided along with documented responses from each e ntity contacted for the request of diverse workers and shall include all follow up request for information pertaining to applicant referrals which indicates the outcome of the referral(s). 6. During the life of the Community Benefits A greement (“CBA”), MSD shall ensure that First Source Hiring Program and/or Training Programs are materia l terms on all new MSD CIRP contracts; all a mended or renewed CIRP projects and voluntary extensions of existing CIRP projects. Under these CIRP projects the requirements for use of these programs shall commence as of the effective date of the contract. MSD shall actively monitor performance of BUD and shall enforce the requirements for use of the BUD Program with appropriate enforcement actions to address noncompliance. The BUD Progra m provid es access to targeted Minorities and Women for M SD projects. Contractors shall receive prompt, cost-fr ee eligibility lists of available qualified and trained applicants when requested for MSD Projects. MSD requires contractor participation in the BUD Program with regard to all job vacancies on MSD projects by: a. Prime Contractors and their subcontractors; b. Contractors and subcontra ctors entering int o or receiving an extension in the scope of an existing project contract, an a mendment or renewal of an existing project in which the CBA was in effect at the time of the original contract. Nothing contained in the CBA or MSD guidelines shall require contractors who are subject to collective bargaining agreements with union affiliates to comply with utilization of MSD Programs which violates any component of bargaini ng agreement terms. Conflicts regarding the use of these programs with collective bargaining agreements must be provided to the District along with good faith effort documentation. c. Contact Information for BU D Training Progra m: Building Union Diversity (BUD) Russ Signorino, Program Director (314) 303-6082 russ_signorino@yahoo.com Non-Building Construction FY2020 V1 (04/02/2020) Page 13 7. For the purposes of validating workforce compliance on any MSD project, the District will perf orm on- site monitoring in order to confirm workforce compliance as described in paragraph A above. Failure to meet the “Good Fa ith E ffort” requirements listed above will subject the Prime contractor to sanctions on doing future work with the District up to and including a complete prohibition from performing work on any District project for a time period to be decided solely by the District. DIVERSITY CONTRACT COMPLIANCE, DIVERSITY FINAL EVALUATIONS AND PRE-QUALIFICATION EVALUATIONS A. Approval of Prime contractor’s monthly payment application is based on the contractor’s compliance with submission of their monthly utilization reports until Diversity has conducted a final evaluation of Diversity contract compliance. Contractors who are delinquent with sub mission of any utilization reports will not receive payment until they have met all reporting requirements. B. Upon submission of a final payment request, MSD’s Diversity Division will conduct a final evaluation of both vendor and workforce (if applicable) goal attainment on all contracts with vendor goals and commitments and/or workf orce goals prior to release of contractors final contract payment. A contractor is considered to be in compliance with MSD’s Diversit y Program guidelines upon successful utilization of the MBE subcontractors proposed on Prime contractor’s originally submitted MSD Form A and satisfaction of a p p l i c a b l e workforce utilization goal requirements . Any deviation from Prime contractor’s originally approved M BE’s, requires contractor to have an approved change order with appropriate j u s t i f i c a t i o n d o c u m e n t a t i o n . Final contract payments will not be approved without all of the required d ocumentation. C. For Building contracts exceeding $500,000, to be in compliance with meeting workforce requirements, an Initial 60 Day Workforce Plan and Project Plan (if required) must be on file, all required monthly Workforce Utilization Reports for Prime and all Subcontractors must be on file, all required certified payrolls for Prime and all Subcontractors for all hours worked must be on file, and any additional required workforce compliance documentation such as G ood F aith E ffort documents must be on file if any portions of workforce goals were not met on the project. Fa ilure to meet the workforce compliance requirements can subject the contractor to sanctions on doing future work with the District up to and including a complete prohibition from performing work on any District project for a time period to be decided solely by the District. D. Diversity participates with Engineering to evaluate each pre-qualified contractor requesting to continue as an approved pre -qualified contractor. Diversity evaluates each pre-qualified contractor on their performance and compliance with the Diversity Program with regards to meeting their vendor and workforce goals as well as their compliance with all Diversity Program requirements. Failure to meet vendor and workforce compliance r equirements or remain in compliance with the Diversity Program can subject the contractor to sa nctions on doing future work with the District up to and including a complete prohibition from perfor ming work on any District project for a time period to be decided solely by the District.