§ 10-33.02. Small Business Enterprise Construction Services Program.

(1)

Title. This section shall be referred to as the Miami-Dade County Small Business Enterprise Construction Services ("CSBE") Program.

(2)

Definitions. The following definitions shall apply in this section:

Advisory board means the Community Small Business Enterprise Board ("CSBE Advisory Board") created for the purpose of reviewing program activities and results, and for making recommendations to Small Business Development ("SBD") and the Board of County Commissioners ("County Commission") on matters pertaining to the program.

Aggregate Set-Aside means an aggregated value of small construction contracts, no one contract of which exceeds five million dollars, which are to be bid during a fixed period of time on a contract-by-contract basis with bidding therefor reserved solely among qualified CSBEs classified in the applicable Contracting Participation Level and SIC or NAICS Code for the contract.

Available or availability means to have, prior to bid submission, the ability to provide construction services under a prime contract that is being considered for a set-aside or under a first or second, third, or fourth tier subcontract on a contract being considered for a first or lower tier subcontractor goal by having:

1.

Reasonably estimated, uncommitted capacity and expertise;

2.

All licenses, permits, registrations and certifications;

3.

The ability to obtain bonding that is reasonably required to perform the contract or subcontract consistent with normal industry practice; and

4.

The ability to otherwise meet bid specifications.

Bid means a quotation, proposal, letter of interest or offer by any bidder in response to any kind of invitation, request or public announcement to submit such quotation, proposal, letters of interest or offer to perform the contract.

Bid preference means an amount deducted (for evaluation purposes only) from the total bid price in order to calculate the bid price to be used to evaluate the bid on a competitively bid prime county construction contract, which is not set-aside for bidding solely by CSBEs.

Bidder means any person, partnership, corporation or other business entity that submits a bid.

Bonding assistance may include providing assistance in preparing and completing bond packages as well as providing ending to be used for bonding purposes.

Business day means a regular week day (Monday through Friday) normally starting at 8:00 a.m. and finishing at 5:00 p.m., excluding Saturdays and Sundays and excluding all legal holidays recognized by the Federal, State or Miami-Dade County governments.

Calendar day means a twenty-four (24) hour period covering all days of the week (Monday through Sunday including all holidays), starting at 12:00 a.m. and finishing at 11:59 p.m.

Certificate of Assurance means the departmental form submitted with bid documents whereby the Bidder acknowledges: (i) Small Business Enterprise ("SBE") measures apply to the project; and (ii) Bidder will submit its list of certified SBEs to satisfy the measures via Miami-Dade County's web-based system, within the specified time frame.

Commercially useful function means contractual responsibility for the execution of a distinct element of the work of a contract by a business enterprise and the carrying out of the contractual responsibilities by actually performing, managing, and supervising the work involved. Acting as a broker is not considered a commercially useful function. The determination of whether an activity is a commercially useful function shall include:

1.

The evaluation of the amount of work subcontracted;

2.

Normal industry practices;

3.

The skills, qualifications, or expertise of the enterprise to perform the work;

4.

Whether the business' own personnel perform, manage, and/or supervise the work involved; and

5.

Other relevant factors.

Commitment letter means a letter signed by an officer or other authorized representative of a bidder or proposer for a County construction contract containing a second, third or fourth tier subcontractor goal which specifically commits the bidder or proposer to meet such subcontractor goal.

Construction means the building, renovating, retrofitting, rehabing, restoration, painting, altering or repairing of a public improvement.

Construction Manager-at-Risk ("CM-at-Risk") replaces the general contractor and works for a fee with the County and the Architect through the design phase to contain the budget and schedule. The CM-at-Risk may provide a guaranteed maximum price ("GMP"), and bids the work out to local trade contractors. The CM-at-Risk mobilizes to the site and manages the trade contractors for quality and schedule.

Construction Services means construction, maintenance, painting, alteration, installation, or repair of a public improvement or any performance of work offered for public consumption that does not consist primarily of goods.

Contract means an agreement proposed by the County or Public Health Trust staff, or approved by the County Commission or Public Health Trust for construction.

Contracting participation level refers to the level in which a CSBE firm is classified based on the average gross revenues of the firm over a three-year period. The three (3) contracting participation levels are:

1.

Level I—Three-year average gross revenues of $0—$2,000,000.00.

2.

Level II—Three-year average gross revenues from $2,000,000.01 but not exceeding $5,000,000.00.

3.

Level III—Three-year average gross revenues from $5,000,000.01 but not exceeding $10,000,000.00.

Prime contracts with estimated project construction cost in excess of ten million dollars ($10,000,000.00) shall be "open market" contracts which all firms can bid on.

CSBE objective means the objective of assuring that not less than ten (10) percent of the County's total annual expenditures for construction are expended with CSBEs. The foregoing CSBE objective may be increased by subsequent resolution of the Board of County Commissioners, adopted after recommendation for an increase by the Advisory Board. Forty (40) percent of the foregoing objective may be accomplished through set-aside of smaller prime contracts and use of subcontractor goals on larger prime contracts falling within Standard Industrial Classification (SIC) code 15; forty (40) percent of the foregoing objective may be accomplished through set-aside of smaller prime contracts and use of subcontractor goals on larger prime contracts falling within SIC 16; and twenty (20) percent of the foregoing objective may be accomplished in prime contracts falling within SIC 17. The percentage of the overall CSBE objective allocated to each SIC category may be adjusted by resolution of the Board of County Commissioners in direct correlation to CSBE availability.

Draw means a request for payment submitted by the prime contractor to the County or County's designee. A scheduled draw occurs, according to the contract's payment schedule, when the prime contractor is allowed to submit its request for payment. The date(s) of a scheduled draw may be stated with specificity in the contract in the form of a payment schedule or may be stated as a reoccurring event taking place, for example, on the 30th of each month.

Graduation means the CSBE has exceeded either the personal net worth, or the specific size limits stated for the program, based on the firm's three-year average annual gross revenues, and will no longer be eligible for participation in the program.

Guaranteed maximum price ("GMP") is the cost of the project that the CM-at-Risk guaranteed will not be exceeded.

Joint Venture means a business arrangement of two or more parties, in which at least one is a CSBE that agrees to pool its resources for the purpose of accomplishing a specific task.

Make-up Plan means a plan whereby a bidder submits via the County's web-based system its commitment that if awarded the contract, it will fulfill all or a portion of any pending Small Business Enterprise Construction Services makeup requirement and identify the certified CSBE firm(s) to be utilized to fulfill the make-up requirement that is in excess of any SBE goal(s) required on the project and the percentage, dollar value and description of the work that needs to be made up within the time frame specified by SBD.

Management and Technical Assistance (MTA) means a program designed to provide direct and indirect assistance for small business enterprise development. Specific details of the program are shown in Attachment 3 [which can be found in the County Clerk's office attached to Ordinance Number 97-52].

Mentor-Protege Program is a program whose purpose is to build effective working relationships between leaders of mature established companies and emerging small business enterprises in order for the latter to benefit from the knowledge and experience of the established mentor firms. The details of this program shall be provided in Implementing Order No. IO 3-22.

Miscellaneous Construction Contracts are open contracts designed to consolidate an indeterminate number of individual small construction, repair, installation, or alteration activities which may be needed over a fixed period of time, or open contracts that are work order based where no specific item quantities have been determined prior to bid (unit price contracts).

Prequalification is defined as provided elsewhere in this ordinance.

Primary Trade Contractor means those contractors who directly contract with the CM-at-Risk. This definition only applies to contracts for a construction manager-at-risk.

Program incentive is an incentive that a firm can choose to use in a bid or proposal based on the firm's participation in certain programs. The incentive consists of either a bid preference or selection factor that will be used in evaluating the firm's bid on a specific project. The program incentives available are as follows:

1.

For participation in the Mentor-Protege' Program—Two (2) percent of bid price or up to ten (10) percent of the total evaluation points;

2.

For participation in the Worker Training Program—Two (2) percent of the bid price or up to ten (10) percent of the total evaluation points.

Qualifier means the individual who has qualified a contractor for its current, valid certificate of competency or eligibility as required by Subsection (a) of Section 10-3 of this Code.

Review Committee or RC means the committee established by the County Mayor or designee to review proposed projects for the application of contract measures where SBD and the contracting department have not established consensus and when public input requires deliberation regarding the measures/goals recommendations. The RC will make recommendations to the Mayor or designee as needed.

SBD means the Miami-Dade County Department of Small Business Development, or successor agency.

Selection factor means a percentage of total evaluation points added to the points scored by a proposer responding to an RFP or RFQ for a prime County construction contract which is not set-aside for competition solely amongst CSBEs.

Set-aside means reservation for competition solely among CSBEs of a given prime County contract whose estimated cost is ten million dollars ($10,000,000.00) or less, and such construction contracts will be classified into one (1) of the three (3) contracting participation levels based on estimated project cost:

1.

Level I Set-aside—For competition solely among Level I prime contractors of a given County contract for construction project valued from $0 to $2,000,000.00. Level II and Level III prime contractors may not compete for Level I set-aside contracts as prime contractors, unless Level I prime contractor unavailability exists.

2.

Level II Set-aside—For competition solely among Level I and II prime contractors of a given County contract for construction project valued from $2,000,000.01 to $5,000,000.00. Level III prime contractors may not compete for Level II set-asides contract as prime contractors, unless Level I and Level II prime contractor unavailability exists.

3.

Level III Set-aside—For competition solely among Level I, Level II, and Level III prime contractors of a given County contract for construction project valued from $5,000,000.01 to $10,000,000.00.

SIC (Standard Industrial Classification) or the equivalent North American Industry Classification System (NAICS) code is a code that was developed by the Federal Office of Management and Budget for use in the classification of establishments by type of activity in which they are engaged.

Small Business Enterprise for Construction Services (CSBE) means a construction related enterprise, including a design-build firm, and any firm providing trades and/or services for the completion of a construction project, as defined in Chapter 10 of the Code of Miami-Dade County, which has an actual place of business in Miami-Dade County and whose average annual gross revenues for the last three (3) years do not exceed: ten million dollars ($10,000,000.00) for SIC 15 - Building Construction, General Contractors and Operative Builders; six million dollars ($6,000,000.00) for SIC 16 - Heavy Construction, other than Building Construction; or five million dollars ($5,000,000.00) for SIC 17 - Specialty Trade Contractors. CSBEs shall be categorized by the type of construction they perform in accordance with the two-digit Standard Industrial Classification (SIC) code, or the six-digit North American Industry Classification System (NAICS), of the Census applicable to such type of construction. A CSBE will graduate out of the program upon notification by SBD that it has exceeded these size limits based on its three-year average annual gross revenues. A certified CSBE that graduates out of the program shall continue to submit financial information as to cumulative gross revenue and bonding capacity to SBD annually for 3 years thereafter in order to further the County's ability to assess the effectiveness of the program.

The County Mayor or designee shall be authorized to adjust the CSBE-size limits every five (5) years at his/her discretion based on the local Consumer Price Index for All Urban Consumers (CPI-U) calculated by the U.S. Department of Commerce or other appropriate tool of inflation measures as applied to Miami-Dade County for the preceding five (5) years. The first indexing adjustment shall occur for the 2013—2014 calendar year using the figures provided for the calendar year ended December 31, 2012, and every five (5) years thereafter. The County Mayor or designee shall advise the Board of any such adjustment.

CSBEs must be certified by SIC or NAICS code, and classified into one (1) of the three (3) contracting participation levels. The lack of bonding capacity shall not preclude an applicant from being certified as a CSBE. As part of the certification process, CSBEs must go through a prequalification process which will be used to determine which of the three (3) contracting participation levels the CSBE will be placed in based on the firm's three (3) year average gross revenues. The contracting participation levels are as follows:

1.

Level I—Three-year average gross revenues of $0.00—$2,000,000.00;

2.

Level II—Three-year average gross revenues above $2,000,000.00 but not exceeding $5,000,000.00; or

3.

Level III—Three-year average gross revenues above $5,000,000.00 but not exceeding $10,000,000.00.

A firm's eligibility to participate in the CSBE program and the contracting participation level at which it will participate shall be determined based on the three-year average gross revenues of the applicant firm in combination with that of all of the firm's affiliates as provided in Appendix A [which can be found in the County Clerk's office attached to Ordinance Number 97-52]. No firm shall be certified as a CSBE where the individual net worth of any of its owners is more than one million five hundred thousand dollars ($1,500,000.00). Representations as to average gross revenues, personal net worth of owners and payroll shall be subject to audit.

Notwithstanding any other provision of this Section 10-33.02, Level II and Level III CSBEs certified in SIC Code 17 - Specialty Trade Contractors, may bid on a specialty trade contract set aside for CSBEs whose estimated cost is above $50,000.00 and may participate in any specialty trade portion of the work of a contract subject to a CSBE subcontractor goal where the cost of the specialty trade portion of the contract work is above $50,000.00.

Subcontractor goal means a proportion of a prime contract value stated as a percentage to be subcontracted to CSBEs to perform a commercially useful function. A first tier subcontract goal may be imposed where there is CSBE availability at such tier level. A second, third and fourth tier subcontract goal may be imposed on those contracts whose estimated cost exceeds twenty-five million dollars ($25,000,000.00) where there is CSBE availability at such lower tier levels.

Trade set-aside means that an entire specialty trade component(s) of a County miscellaneous construction contract is reserved for first tier subcontracting amongst certified CSBEs (for example, the entire plumbing or roofing or electrical component of a specific contract is reserved for limited competition amongst certified CSBEs). All such subcontracts shall be in writing and shall be executed by the prime contractor and the first tier CSBE subcontractor.

Utilization Plan means the plan whereby a Bidder submits via the County's web-based system its commitment that if awarded the contract, it will fulfill the SBE goal(s) required for the project and identify certified firms to fulfill goal(s) and percentages, dollar value, and description of the work to fulfill the SBE goal within the time frame specified by SBD. Subcontractor(s) listed will also be required to confirm their participation via the County's web-based system within the specified time frame. Bidders must enter into written subcontracts with the listed CSBE(s).

Virtual Office means an agreement that provides a receptionist, mail and facsimile services, and similar services, that give the appearance of having a business presence at a location, but the business entity has no ongoing, full-time physical presence in the building. Virtual Offices are invalid for certification purposes.

Worker Training Program is a qualified training program or technical school or other such construction industry related training program, as approved by the advisory board.

(3)

Program components:

A.

Application. Except where federal or state laws or regulations mandate to the contrary, the provisions of this section shall require review of all construction contracts funded in whole or in part with County funds and all leases and contracts for privately funded construction on County-owned land to determine the appropriateness of applying contract measures as set forth in this section. The County Mayor shall prepare administrative orders, implementing orders, bid, and contract documents implementing the Bonding and Financial Assistance Program, the Management and Technical Assistance Programs, the Mentor-Protege Program and other related programs addressed in this section. All leases and contracts for privately funded construction on County-owned land for which measures are determined to be appropriate under this section shall contain specific provisions to implement the intent of the CSBE program in a manner consistent with its application to County construction contracts. This section shall not apply to privately funded construction on any County-owned facilities or property where the total value of the construction is two hundred thousand dollars ($200,000.00) or less. The words "County Mayor" in this section shall mean the County Mayor or his or her designee.

B.

Miami-Dade County Small Business Enterprise Construction Services Program. The prompt payment provisions of this section shall take precedence over Section 2-8.1.4 of the Code ("Sherman S. Winn Prompt Payment Ordinance"), as to the contracts specified below:

1.

Prompt payment.

a.

The County Mayor or designee and the President of the Public Health Trust shall establish administrative procedures requiring that billings from contractors under prime construction contracts with Miami-Dade County or the Public Health Trust that are a CSBE contract set-aside or which contain a trade set-aside or subcontractor goal, shall be promptly reviewed and payment made to the prime contractor by the County or Trust on those amounts not in dispute within fourteen (14) calendar days of receipt of such billing by the County or the Trust.

The County and Trust shall notify the prime contractor, and the Department of Small Business Development (SBD), in writing, of those billings submitted by the prime which are in dispute, and the reasons why they are in dispute, within fourteen (14) calendar days of receipt of such billing by the County or Trust. This provision is applicable regardless of whether the disputed billing pertains to the work performed and/or billing of CSBE subcontractors. Reference is hereby made to Section 2-8.1.4(6) of the Code, which sets forth the procedures for improper invoices and resolution of disputes.

b.

A prime contractor shall include in its billing to the County or Trust copies of those billings from CSBE subcontractors utilized to meet the subcontractor goal applicable to the contract which the contractor approves and whose cost is included in the payment requested from the County or Trust. A prime contract which contains a second, third or fourth tier subcontractor goal shall require all subcontractors in direct privity with a second or lower tier CSBE subcontractor, and all successive subcontractors on up to and including the first tier subcontractor level, to include portions of any lower tier CSBE subcontractor's billings which are approved by such subcontractors and are included in any payment amount they request.

Undisputed portions of billings from CSBEs that are submitted to the prime at least five (5) days or more before the date of the prime's next scheduled draw, must be submitted by the prime to the County in the prime's next scheduled draw, according to the contract's payment schedule. For example: if the County's billing cycle on the specific contract allows the prime to submit its draw on the 30th of each month, a CSBE that submits its billing to the prime on or before the 25th of the month shall have its billing included in the prime's next scheduled draw submitted to the County on the 30th.

Undisputed portions of billings from CSBEs that are submitted to the prime less than five (5) days before the prime's next scheduled draw, may be submitted in the next draw; however, said billings shall be submitted no later than in the prime's next subsequent scheduled draw. For example, if the County's billing cycle on the specific contract allows the prime to submit its draw on the 30th of each month, a CSBE that submits its billing to the prime after the 25th of the month but before the 30th of the month shall, at the latest, have its billing included in the prime's subsequent scheduled draw submitted to the County on the 30th of the following month.

Failure by the prime to include the CSBE's billing(s) in its next scheduled draw or subsequent scheduled draw to the County as outlined above, and absent notification of disputes, as set forth in subsection (3)(A)(1) herein, shall result in the prime making full payment directly to the CSBE for the full amount of the submitted billing(s). Full payment to the CSBE subcontractor for the particular billing(s) shall be made within the same number of days that the County has mandated as the billing cycle for said contract in operation, or within forty (40) calendar days of submittal of such billing(s) by the CSBE to the prime, whichever is less, regardless of whether the prime has received its payment from the County.

c.

If for any reason, the prime contractor chooses not to submit any billings to the County on its next or subsequent scheduled draw, the prime contractor shall make full payment to the CSBE subcontractor(s) for billings submitted by the CSBE subcontractor(s) in accordance with the subsection above. Full payment to the CSBE subcontractor(s) for the particular billing(s) shall be made by the prime contractor within the same number of days that the County has mandated as the billing cycle for said contract in operation, or within forty (40) calendar days of submittal of such billing(s) by the CSBE subcontractor(s) to the prime contractor, whichever is less, regardless of whether the prime has received its payment from the County.

d.

Prime construction contracts to which a CSBE trade set-aside or subcontractor goal has been applied shall require that billings from CSBEs at whatever subcontractor tier level for which the contract measure has been applied, shall be promptly reviewed and payment made to such CSBEs on those amounts not in dispute within two (2) business days of receipt of payment therefor. The foregoing obligation to promptly review and pay CSBE billings shall apply to prime contractors and subcontractors who are in direct privity with the CSBE and to each successive subcontractor on up the line to the level of prime contractor. The two (2) day payment provision shall equally apply to retainage payments received by prime contractors from the County, and subsequently passed on to subcontractors.

e.

The prime contractor agrees to the contract requirements of Miami-Dade County, Florida Code, Section 10-35, Release of Claim by Subcontractors Required. The requirements found in Section 10-35 are hereby fully incorporated into this CSBE Prompt Payment Subsection and non-compliance, by failing to pay subcontractors and failing to provide the requisite subcontractor affidavit and/or consent of surety to requisition payment, shall be enforceable through this Subsection.

f.

The prime contractor on a prime construction contract to which a CSBE trade set-aside or a first tier subcontractor goal has been applied shall inform the Department of Small Business Development, the Contracting Officer, and the first tier CSBE subcontractor, in writing, of those amounts billed by the CSBE which are in dispute, and the specific reasons why they are in dispute, within five (5) calendar days of submittal of such billing by the first tier CSBE subcontractor to the prime contractor. Prime contracts to which a second or lower tier subcontractor goal has been applied shall provide that subcontractors in direct privity with any CSBE utilized to meet such lower tier subcontractor goal, shall inform the affected CSBE in writing, with copies to the prime contractor and the Department of Small Business Development, of those amounts of such CSBE's billings that are disputed and the specific reasons therefor within five (5) calendar days of submittal of such billing from the CSBE.

Failure of the prime contractor to comply with the applicable requirements of this Subsection shall result in the prime contractor's forfeiture of the right to use the dispute as justification for not paying the first tier CSBE subcontractor and payment shall be forthcoming from the prime contractor. Prime contracts to which a second or lower tier subcontractor goal has been applied shall provide that a subcontractor in direct privity with a CSBE utilized to meet such goal who fails to comply with the applicable provisions of this Subsection shall result in such subcontractor's forfeiture of the right to use the dispute as justification for not paying the CSBE subcontractor and payment shall be forthcoming from such subcontractor.

g.

None of the provisions of Section (3)(B)1 requiring the prime contractor to make full payment on any billing by a subcontractor due to failure to comply with this section shall be construed as also requiring the County to make a similar full payment of that billing to the prime contractor. The County shall not be precluded from disputing billings submitted by prime contractors in accordance with the notice requirements of subsection (3)(B)1a as stated herein.

h.

Failure of the prime contractor to comply with any of the requirements found in Section 10-33.02 (3)(B)1 et seq. shall result in the imposition of one (1) or more of the following sanctions:

1.

The suspension of any payment or part thereof until such time as the issues concerning compliance have been resolved;

2.

Work stoppage;

3.

Termination, suspension, or cancellation of the contract in whole or part;

4.

The contractor may also be subject to debarment.

i.

The County Manager, or his or her designee, shall establish administrative procedures to apply similar provisions, as found in this subsection, (3)(B)1, to CSBEs that are being used to meet 2nd, 3rd and/or 4th tier CSBE measures on County contracts.

j.

In addition to any sanction available pursuant to Subsection (3)(B)1.h. above, construction contracts to which a CSBE trade set-aside or subcontractor goal at any subcontractor tier level has been applied shall provide that failure of the prime contractor or any subcontractor in direct privity to the CSBE to make prompt payment as provided in Section 10-33.02(3)(B)1. et seq., shall result in the imposition of a penalty of $75.00 per day for each day payment to a CSBE subcontractor is not made within the time frames specified in these provisions. Any such penalty shall be deducted from the prime contractor's next invoice. Monies received from payment of penalties imposed hereunder shall be utilized to defray SBD's cost of administering this ordinance.

Contractual documents shall also require the prime contractor or any subcontractor in direct privity to the CSBE to make payment to the CSBE of one (1) percent interest per month on any balance not paid by the time frame specified in these provisions; unpaid balance shall bear interest from thirty (30) days after the due date at a rate of one (1) percent per month. The CSBE must invoice the prime contractor for any interest accrued in order to receive the interest payment. Any overdue period of less than one (1) month shall be considered as one (1) month in computing interest. Unpaid interest shall compound monthly. With respect to each past due payment, interest shall cease to accrue after interest on that payment has accrued for twelve (12) months. For purposes of this section, one (1) month shall constitute a period beginning on any day of one month and ending on the same day of the following month. No contract between the prime contractor and the CSBE or any subcontractor in privity thereto shall prohibit the CSBE from invoicing for late payment interest charges allowed under this section.

2.

Mentor-Protege Program: This program is a community based effort involving leaders of major firms, financial and bonding institutions, contracting associations, small business enterprises, and support service organizations. The program is an effort to overcome difficulties that typically inhibit or restrict the success of small businesses and is designed to produce a broad base of high quality, competitive and profitable companies through incremental improvement. It is expected that as a result of the Mentor-Protege Program, Protege will experience a greater than industry average success rate and realize the growth and profitability objectives of their business plans as well as long range stability. The program will provide a community benefit by strengthening emerging businesses and providing them with opportunities for growth, expansion and increased participation in Miami-Dade County's economic development. To be eligible for incentives under the Mentor-Protege Program, the mentors and proteges must be registered by SBD in the Mentor-Protege Program.

3.

Bonding and Financial Assistance Program: This program will provide CSBEs with assistance in obtaining bonding and/or financial assistance for construction projects. Bonding assistance will include providing assistance in preparing and completing bond packages as well as providing funding to be used for bonding purposes. Financial assistance will include providing financial assistance such as mobilization capital, line of credit and/or working capital loans through partnering relationships with financial institutions. The specific details of the proposed program are shown in Attachment 2 as amended.

4.

Management and Technical Assistance Program: This program will provide direct and indirect assistance for small business development. Program management provides direction, coordinates access to services, and maintains continual communications to assure knowledge and use of available resources. Technical assistance will also be provided such as accounting services and business plan preparation, which will assist firms in developing documents needed for bonding and financial assistance as well as business and management workshops and seminars. CSBEs may have access to resources that focus on developing their management capacity and enhancing the marketability of their products. Specific details of the proposed program are shown in Attachment 3 [which can be found in the County Clerk's office attached to Ordinance Number 97-52].

5.

Trade set-asides: Trade set-aside means that an entire specialty trade component(s) of a County contract or a miscellaneous construction contract which the prime contractor shall subcontract at the first tier level to certified CSBEs (for example, the entire plumbing or roofing or electrical component of a specific contract). All such subcontracts shall be in writing and shall be executed by the prime contractor and the first tier CSBE subcontractor. Miscellaneous construction contract shall mean a construction contract managed by a construction manager selected on the basis of a management fee that will be added to the cost of specialty trade work for various projects bid by the construction manager as a trade set-aside for CSBEs.

6.

Subcontractor goals:

a.

In general. The County Commission or Public Health Trust may establish subcontractor goals for any specialty and/or construction related trade or service portion of the work in a contract based on estimates made prior to bid advertisement of the quality, quantity and type of subcontracting opportunities provided by the contract, and of the availability of CSBEs to afford effective subcontracting competition therefor. A Small Business Enterprise Goods Program and Small Business Enterprise Services Program goal(s) may be applied to any project with an estimated value over $700,000.00. After bid advertisement, or other formal public notice, the established subcontractor goal may be reduced only with the approval of the County Commission, or Public Health Trust.

Where a first tier subcontractor goal has been imposed, bid documents shall require bidders to submit a Certificate of Assurance on the bid submittal due date and a Utilization Plan, via the County's web-based system within the time frame specified by SBD. Where a second, third and fourth tier subcontractor goal has been imposed, the bid documents shall require bidders to include a commitment of the bidder to meet such goals in the aforementioned Certificate of Assurance. Failure to submit the required Certificate of Assurance at the time of bid submission shall render the bidder non-compliant to the contract requirement and this section. A CSBE firm may fulfill a subcontractor goal in only one goal type per contract.

Bidders whose bids fail to meet the specified first tier subcontractor goal, in order to remain eligible for award of the contract, must submit evidence, with the Utilization Plan, proving the lack of available CSBEs to afford effective competition therefor.

A successful prime bidder that is a CSBE or a joint venture may perform up to fifty (50) percent of a first tier CSBE subcontractor goal with its own forces. The remaining percentage of such first tier subcontractor goal work shall be performed by other CSBEs.

Bid documents shall provide that:

(i)

Only expenditures to CSBEs for performing a commercially useful function shall be counted toward meeting a specified subcontractor goal.

(ii)

Expenditures to CSBEs for acting essentially as a conduit to transfer funds to a non-CSBE shall not be counted toward meeting a subcontractor goal unless such conduct receives prior approval from SBD as consistent with normal industry practice.

(iii)

Expenditures to CSBEs who subcontract work further to non-CSBEs shall not be counted toward meeting a subcontractor goal unless such subcontracting receives prior approval from SBD as consistent with normal industry practice.

(iv)

Only expenditures to CSBEs made under a written first tier subcontract executed by both the prime contractor and the CSBE shall be counted towards meeting a first tier subcontractor goal. If the prime contractor exceeds the first-tier CSBE subcontractor goal, the amount by which the first-tier CSBE subcontractor goal is exceeded shall count towards fulfillment of the second, third and fourth tier subcontractor goal on that contract. Only expenditures made under a written second, third or fourth tier subcontract executed by both the next tier level subcontractor and the lower tier CSBE subcontractor shall be counted towards meeting a second, third or fourth tier subcontracting goal.

(v)

The bidder who is awarded a contract having a second, third or fourth tier subcontractor goal shall notify SBD in writing, prior to initiating the process to select lower tier CSBEs whose participation will be utilized to meet such goal, of the name, address and tier level of the subcontractor who will award the lower tier subcontract to a CSBE, the scope of work for such lower tier subcontract and the bid submission date for such lower tier subcontract. The prime contractor shall obtain SBD's approval prior to the award of any lower tier subcontract that will be utilized to meet a lower tier subcontractor goal.

(vi)

Contracts in excess of twenty-five million dollars ($25,000,000.00) which have subcontractor goals shall require the prime contractor during the term of the contract to make a quarterly presentation to the CSBE Advisory Board on his or her performance in meeting such goal.

Bid documents shall allow bidders to challenge or protest a subcontractor goal established under this section by submitting no later than ten (10) business days prior to the scheduled bid opening date the reasons for such challenge or protest in writing to the department responsible for the contract. Challenges or protests to a CSBE subcontractor goal by bidders after the time specified in the preceding sentence shall not be heard by the County Commission or Public Health Trust.

b.

Application to Construction Manager-at-Risk contracts.

(i)

Construction management services portion. For Construction Manager-at-Risk contracts, the County Commission may establish, where appropriate and upon the recommendation of SBD, first tier CSBE subcontractor goals applicable to the construction management portion thereof. Such goal shall not be applicable to the procurement of trade packages on the actual construction project. Bidders for CM-at-Risk contracts to which a first tier CSBE subcontractor goal has been established for construction management services under this paragraph shall submit the Certificate of Assurance and follow the procedures and timing therefor applicable to contracts in general under subpart a) above.

(ii)

Actual construction portion of the work. For CM-at-Risk contracts, subcontractor goals for the actual construction portion of the work may be established where appropriate by the County Mayor or the Mayor's designee for 1st, 2nd, 3rd or 4th tier subcontractors upon the recommendation of SBD based on estimates made prior to advertisement of the bid package of the quality, quantity and type of subcontracting opportunities provided by the bid package and of the availability of CSBEs to afford effective subcontracting therefor.

(a)

Overall subcontracting goal. Where an overall CSBE subcontracting goal has been established for the actual construction portion of the work, the CM-at-Risk shall submit the Utilization Plan to the County at the time the Final Guaranteed Maximum Price is due identifying all CSBEs utilized to meet the overall goal, and the trade designation of work and percentage of the Final Guaranteed Maximum Price each will perform.

(b)

First tier subcontractor goal. Where a first tier CSBE subcontracting goal has been established, bidders to the CM-at-Risk for contracts as Primary Trade Contractors shall submit at the time of bid submission to the CM-at-Risk a Certificate of Assurance, on the bid submittal due date and a Utilization Plan within the time period specified by SBD, identifying all CSBEs to be utilized to meet such goal, the trade designation of the work and the percentage of the bid each identified CSBE will perform. Failure to submit the required Certificate of Assurance and Utilization Plan within the required time frame may render the bidder non- compliant, or subject to sanctions or penalties as outlined in the contract or the Implementing Order. The use of CSBEs at the Primary Trade Contractor level and at the level of contractors that directly contract with the Primary Trade Contractors shall count towards meeting the first-tier CSBE subcontractor goal on the contract. In addition, if the CM-at-Risk exceeds the first-tier CSBE subcontractor goal, the amount by which the first-tier CSBE subcontractor goal is exceeded shall count towards fulfillment of the second, third and fourth tier subcontractor goal on that contract. However, if the CM-at-Risk exceeds the second, third and fourth tier subcontractor goal, the amount that the second, third and fourth tier subcontractor goal is exceeded shall not count towards fulfillment of the first-tier subcontractor goal.

(c)

Second, third and fourth tier subcontractor goals. Where a second, third or fourth tier subcontractor goal has been established for the actual construction portion of the work under a CM-at-Risk contract, the construction manager at risk awarded the contract shall notify SBD in writing, prior to initiating the process to select lower tier CSBEs whose participation will be utilized to meet such goal, of the name, address and tier level of the subcontractor who will award the lower tier subcontract to a CSBE, the scope of work for such lower tier subcontract and the bid submission date therefor. The construction manager at risk awarded the contract shall obtain SBD's approval prior to the award of any lower tier subcontract that will be utilized to meet a lower tier subcontract goal.

(iii)

Reduction in established subcontractor goal and periodic reporting to the Commission . After bid advertisement, or other formal public notice, the established subcontractor goal on a CM-at-Risk contract for construction management services may be reduced only with the approval of the County Commission or Public Health Trust. After bid advertisement or other formal notice, the established subcontractor goal applicable to the actual construction portion of the work may be reduced only with the approval of the Mayor. The County Mayor shall periodically report to the Board of County Commissioners on all goals on Construction Manager-at-Risk contracts.

(iv)

Compliance responsibilities. The Construction Manager-at-Risk shall comply with the requirements of this subsection regarding any CSBE subcontractor goal that has been applied to any portion of the work of the CM-at-Risk contract.

c.

Application to contracts for environmental services where construction tasks are involved. For contracts for environmental services where construction tasks are involved, CSBE subcontractor goals may be established by the County Mayor upon the recommendation of SBD based on estimates made prior to awarding such tasks and of the availability of CSBEs to afford effective subcontracting therefor.

[7.

Reserved. ]

8.

Contract measures:

a.

Contract set-asides: The County Commission or Public Health Trust may determine it is in its best interest to waive any competitive bidding or selection requirement and set-aside a prime County construction contract for CSBEs when determined, prior to bid advertisement, that there are at least three (3) CSBEs available in the Standard Industrial Classification (SIC) category, as well as in the contracting participation level that the contract is classified in (based on the estimated project construction cost). Contracts with estimated project construction cost less than or equal to ten million dollars ($10,000,000.00) may be set-aside for competition by CSBEs. Such contracts will be placed into one (1) of three (3) contracting participation levels based on the estimated project construction cost, and will be classified by Standard Industrial Classification (SIC) or North American Industry Classification System (NAICS) code. The three (3) contracting participation levels, based on average gross revenues for the past three (3) years are:

1.

Level I—Three-year average gross revenues of $0.00—$2,000,000.00

2.

Level II—Three-year average gross revenues above $2,000,000.00 but not exceeding $5,000,000.00

3.

Level III—Three-year average gross revenues above $5,000,000.00 but not exceeding $10,000,000.00

CSBEs will also be categorized by contracting participation level, which will be determined by the Department of Small Business Development (based, in part, on the CSBE's prequalification package).

CSBEs prequalified in one (1) Contracting Participation Level (e.g. those in Contracting Participation Level III) may not bid on a lower level prime County contract set-aside for CSBEs (e.g., a three hundred thousand dollar ($300,000.00) project which falls into Level I). However, a CSBE prequalified in a lower level may bid on contracts whose estimated cost falls within a higher level (e.g., a Level I CSBE may bid on a Level II or III contract).

Transferring to a non-CSBE through subcontracting or otherwise all or part of the actual work of a set-aside contract is prohibited unless such transfer receives prior approval from the Department of Small Business Development as consistent with normal industry practice.

A CSBE may compete for any set-aside prime construction contract in the SIC or NAICS code which the CSBE is certified.

In the case of an Aggregate Set-Aside, the aggregated value of the set-aside shall be established after taking into account the CSBE objective and the effect of any measures that may be applied to other County construction contracts not included in the Aggregate Set-Aside. The particular level of CSBEs that may bid for a particular contract under an Aggregate Set-Aside shall be determined by Contracting Participation Level based on the contract's estimated cost and by SIC or NAICS Code. At the time a proposed Aggregate Set-Aside is presented to the County Commission for waiver of competitive bidding and set-aside for CSBEs, staff shall present an analysis of the availability of sufficient CSBEs in the various Contracting Participation Levels to compete for the contracts proposed to be included in the aggregated value of contracts proposed for the Aggregate Set-Aside. As part of such presentation, staff shall advise the Commission of the mechanisms that will be applied to assure an equitable distribution of awards to all qualified CSBEs.

b.

Selection factor: A contractor responding to an RFP or RFQ for a prime county construction contract which is not set-aside for competition solely amongst CSBEs shall be entitled to a program incentive of up to ten (10) percent of the total evaluation points for participation in the Worker Training Program or the Mentor-Protege Program. The County Manager shall establish a sliding scale which provides the extent of preference given a contractor hereunder. In no event shall the cumulative effect of the selection factor hereunder, exceed ten (10) percent of the total evaluation points on any one (1) RFP or RFQ.

Any committee formed to evaluate a response to an RFP or RFQ with a CSBE selection factor shall include a voting representative from the Department of Small Business Development.

c.

Bid preference: A contractor bidding on a competitively bid prime county construction contract which is not set-aside for competition solely amongst CSBEs shall be entitled to a program incentive of up to two (2) percent of such contractor's bid price (for bid evaluation purposes only) for participation in the Worker Training Program or the Mentor-Protege Program. The County Manager shall establish a sliding scale which provides the extent of preference given a contractor hereunder. In no event shall the cumulative effect of the bid preference hereunder, exceed two (2) percent of such contractor's bid price.

d.

Trade set-aside: The County Commission or Public Health Trust may authorize a trade set-aside as outlined in this section.

e.

Subcontractor goals: The County Commission or Public Health Trust may establish subcontractor goals as outlined in this section.

9.

Advisory board: There is hereby created a Community Small Business Enterprise Advisory Board or CSBE Advisory Board for the CSBE Program. Board members shall be appointed by the Board of County Commissioners and shall consist of one each of the following:

1.

One (1) member from the list of recommended appointees submitted by the Allied Minority Contractor's Association, Inc.;

2.

One (1) member from the list of recommended appointees submitted by the South Florida Chapter of the Associated General Contractors of America;

3.

One (1) member from the list of recommended appointees submitted by the BAC Funding Corporation;

4.

One (1) member from the list of recommended appointees submitted by the Construction Association of Florida, Inc;

5.

One (1) member from the list of recommended appointees submitted by the Engineering Contractor's Association of South Florida, Inc.;

6.

One (1) member from the list of recommended appointees submitted by the Latin Builders' Association;

7.

One (1) member from the list of recommended appointees submitted by the Underground Contractors' Association of South Florida, Inc.;

8.

One (1) member from the list of recommended appointees submitted by the Miami-Dade Chamber of Commerce;

9.

One (1) member from the list of recommended appointees submitted by the Contractor's Resource Center;

10.

One (1) member from the list of recommended appointees submitted by the UPPAC;

11.

One (1) member from the list of recommended appointees submitted by the National Association of Black Women in Construction;

12.

A representative of the local bonding industry;

13.

A representative of the local banking and financial industry;

14.

A certified CSBE; and

15.

One (1) member from the list of recommended appointees submitted by the CSBE Association.

The terms of each member shall be two years. Members shall serve without compensation.

The Advisory board is created for the purpose of providing general program oversight and assisting Small Business Development in tracking and monitoring the results and effectiveness of the CSBE Program. The Advisory board shall not assume Small Business Development's administrative or other responsibilities. The Advisory board may serve as liaison between program participants and the local business community, recommend additional program incentives, participate in the recruitment of prospective participant's for the CSBE program, and review and report on the program's progress.

Sections 2-11.1(c) and (d) of the Conflict of Interest and Code of Ethics Ordinance of Miami-Dade County are waived for CSBE Advisory Board members for transactions arising from the exercise of those powers given the advisory board by this section.

The County Mayor or designee shall approve the replacement of any of the delineated recommending organizations above, where said organization(s) fails to either (i) provide a list of recommended appointees within thirty (30) days of written notice from Small Business Development, or (ii) continue to operate in Miami-Dade County, or the appointed CSBE Advisory Board member fails to participate in board activities for a period of six (6) months. The current CSBE Advisory Board shall provide the name(s) of a recommended replacement organization(s) to be considered by the County Mayor, by majority vote.

10.

Graduation: Upon review, any CSBE that exceeds the personal net worth or size limits, based on the firm's three-year average gross revenues, established by this section shall be graduated from the CSBE program upon notification by SBD and may no longer be eligible for participation in the CSBE Program. These firms shall be allowed to complete any currently awarded contract and remain eligible to be awarded contracts as primes or subcontractors for bids submitted prior to notice of graduation. However, the graduated firm will not [be] eligible to receive any new contracts under the CSBE program.

(4)

Certification requirements: The County Mayor or designee shall implement eligibility criteria and procedures for entities to be certified as CSBEs based on regulations outlined in this section. Firms exceeding size limits established hereunder and under Appendix A [which can be found in the County Clerk's office attached to Ordinance Number 97-52] are not eligible for contract measures or participation in these programs.

1.

Small Business Development shall maintain an updated list of CSBEs, identifying each listed CSBE based on each Standard Industry Classification (SIC) category or North American Industry Classification System (NAICS) code and each specialty trade the CSBE is certified in, and noting what contracting participation level the firm is classified in.

2.

Small Business Development shall not certify an applicant, shall not recertify a CSBE, and shall decertify a CSBE that fails to comply with the criteria or procedures for obtaining or maintaining certification. Small Business Development shall have authority to suspend the certification of a CSBE during any appeal of a decertification decision. Firms that have been decertified for non-submittal of documents, may apply for recertification once said documents have been submitted and verified by SBD.

3.

Applicants and certified CSBEs must be properly licensed to conduct business in Miami-Dade County, must have a valid business tax receipt issued by Miami-Dade County at least one (1) year prior to certification, must perform a commercially useful function with an actual place of business in Miami-Dade County, and must continue to perform a commercially useful function in Miami-Dade County to be eligible for certification or to remain certified. In addition, a firm shall not be certified unless it contributes to the economic development and well-being of Miami-Dade County in a verifiable and measurable way. This may include, but not be limited to the retention and expansion of employment opportunities and the support and increase to the County's tax base.

4.

The qualifier of the certified CSBE firm must own at least ten (10) percent of the certified firm's issued stock.

5.

The County Mayor or designee shall establish the frequency and administrative procedures for certification renewal by Implementing Order approved by the Board of County Commissioners. Certification must be in effect at the time of bid submittal. Successful bidders must be certified at the time of bid submittal, bid award, and throughout the duration of the contract. With the exception of provisions previously described for graduation from the CSBE program, loss of CSBE certification may lead to removal of the firm from continued participation in the CSBE program. CSBEs experiencing changes in ownership shall notify the County within thirty (30) days of the effective date of such changes.

6.

A business owner, alone or as a member of a group, shall own or control only one (1) CSBE at a time. A business owner, alone or as a member of a group, and any CSBE may not hold more than a ten (10) percent equity ownership in any other CSBE.

7.

Applicants for CSBE certification shall, as part of their application, disclose the information specified in Subsections (d)(1) and (2) of Section 2-8.1 of this Code.

8.

Small Business Development may require applicants and CSBEs to submit information regarding their business operations, including, but not limited to, a breakdown of the applicant's or CSBE's ownership, management, and/or workforce as to race, national origin, gender, and gross annual sales.

(5)

Enforcement: Bid and contract documents shall provide that, notwithstanding any other penalties or sanctions provided by law, a bidder's violation of or failure to comply with this ordinance or its implementing orders may result in the imposition of one (1) or more of the following sanctions:

i.

The suspension of any payment or part thereof until such time as the issues concerning compliance are resolved;

ii.

Work stoppage;

iii.

Termination, suspension, or cancellation of the contract in whole or part;

iv.

In the event a bidder or CSBE attempts to comply with the provisions of this section through fraud, misrepresentation, or material misstatement, or is found after a hearing to have discriminated in violation of Article VII of Chapter 11A of the Miami-Dade County Code, the County shall, whenever practicable, terminate the contract or require the termination or cancellation of the first tier subcontract for the project on which the bidder or CSBE committed such acts. In addition, and as a further sanction, the County Mayor or Mayor's designee may impose any of the above-stated sanctions on any other contracts or first tier subcontracts the bidder or CSBE has on County projects. In each instance, the bidder or CSBE shall be responsible for all direct and indirect costs associated with such termination or cancellation including attorney's fees and costs. The bidder or CSBE may also be subject to debarment.

v.

The foregoing notwithstanding, the County Mayor or designee shall include language in all prospective contracts containing a CSBE measure which provides that, in addition to any other sanction for failure to fulfill the CSBE measure requirements, the contractor's eligibility to receive any future County contracts may be conditioned upon the contractor making up the deficit in CSBE participation in such future contracts by having CSBE(s) perform equal to double the dollar value of the deficiency in the CSBE measure in the prior contract. Contract language shall provide that in order to be eligible for future county contracts, a contractor who fails to meet an established CSBE goal shall submit a CSBE Make-up Plan for the approval of the Director. A Make-up Plan must be submitted as part of any bid or proposal for future contracts as part of the Utilization Plan submitted via the County's web-based system. The Make-up Plan must identify all CSBEs to meet the first tier subcontractor goal and the trade designation of work each firm will perform in satisfaction of a make-up, in addition to any other goals that may be applicable. Failure to submit the required Make-up Plan with the Utilization Plan for any future contracts shall result in the submittal being deemed non-compliant. Any contractor subject to an approved Make-up Plan that fails to comply with any of the material terms of that Make-up Plan, without good cause, shall be subject to an automatic suspension from bidding and/or otherwise participating on County contracts as a prime or subcontractor for a six (6) month period. A contractor that fails to comply with any of the material terms of a second Make-up Plan, without good cause, shall be subject to an automatic suspension from bidding and/or otherwise participating on County contracts as a prime or subcontractor for a one (1) year period. A contractor that fails to comply with any of the material terms of a third Make-up Plan, without good cause, may be subject to debarment and shall automatically be referred to the debarment committee. After serving a debarment for failure to satisfy a make-up plan for no good cause, the subject firm shall be deemed ineligible for bidding on County contracts with measures for one additional year unless the County Mayor or designee determines that an emergency exists justifying such participation, and the Board of County Commissioners approves such decision. The foregoing obligation shall be in addition to any CSBE measure otherwise applicable to the future contract.

Some of the contractual violations that may result in the imposition of the sanctions listed in Subsection (5) above include, but are not limited to, the following:

1.

A CSBE serving as a conduit for CSBE work awarded to a firm as a CSBE but which is being performed by a non-CSBE firm;

2.

A prime contractor not meeting CSBE Program trade set-aside or subcontractor goal requirement;

3.

Not obtaining or retaining CSBE certification while performing work designated for CSBE firms.

4.

Failure of the prime contractor to report payments to subcontractors via the County's web-based system upon notification of payment by the County, or failure of subcontractors to confirm payments upon notification by the prime contractor, within the specified time frame;

5.

Failure to comply with CSBE certification requirements, including not maintaining an actual place of business in Miami-Dade County, not reporting organizational and operational changes, providing inaccurate or false information, and other certification related violations;

6.

Failure to maintain certification as a CSBE;

7.

Deviation from the Utilization Plan without prior approval from SBD;

8.

Termination of the CSBE's contract without prior approval from SBD;

9.

Reduction of the scope of work of a first tier CSBE subcontract without prior approval from SBD. Reduction of the scope of work of a second, third or fourth tier CSBE subcontract utilized to meet a second, third or fourth tier subcontractor goal without prior approval of SBD;

10.

Modifications to the terms and/or prices of payment to a CSBE without prior approval from SBD;

11.

Failure to enter into a written first tier subcontract with a CSBE after listing the firm on a Utilization Plan.

12.

Failure to enter into a written second, third or fourth tier subcontract with a CSBE utilized to meet a second, third or fourth tier subcontractor goal.

(6)

Administrative penalties. For violation of or noncompliance with this ordinance or its implementing orders, bid, and competitive selection documents, the County Mayor or designee may impose penalties that include, but are not limited to, the following:

1.

The loss of eligibility to be certified as a CSBE for a specified period of time, not to exceed three (3) years, for an applicant or a CSBE, its individual officers, its shareholders with significant interests, and its affiliated businesses.

2.

If the determination of the County Mayor or designee is that the contractor or subcontractor failed to comply and that such failure was pervasive, the Mayor or designee may order that the contract work be suspended or terminated, and that the non-complying contractor or subcontractor and the principal owners and/or qualifying agent thereof be prohibited from bidding on or otherwise participating in County construction contracts for a period not to exceed three (3) years.

3.

If the determination of the County Mayor or designee is that the contractor or subcontractor failed to comply and that such failure was limited to isolated instances and was not pervasive, the County Mayor or designee may, in the case of a goal deficit, order a penalty amount to be withheld from the contractor for such noncompliance as follows: for the first deficit, a penalty in an amount equal to 20% of the amount thereof; for the second deficit, a penalty in an amount equal to 40% thereof; for the third and successive deficits, a penalty in an amount equal to 60% thereof. A fourth violation and finding of noncompliance, shall constitute a default of the subject contract and shall be cause for suspension or termination in accordance with the contract's terms and debarment in accordance with the debarment procedures of the County. Monies received from payment of penalties imposed hereunder shall be deposited in a separate account and shall be utilized solely to defray SBD's costs of administering Section 10-33.02 of the Code of Miami-Dade County.

4.

If the required payment is not made within thirty (30) days of the administrative hearing or final resolution of any appeal therefrom, the noncomplying contractor or subcontractor and the principal owner(s) and qualifying agent(s) thereof shall be prohibited from bidding on or otherwise participating in County construction contracts for a period not to exceed three (3) years.

(7)

Penalties for Utilization Plan violations. If on three (3) separate occasions, a subcontractor executed a Utilization Plan and subsequently becomes unavailable to perform or complete the work for the prime contractor during the contract period, SBD shall suspend said subcontractor from certification for one (1) year. If SBD suspends the same subcontractor three (3) times due to its failure to perform pursuant to a Utilization Plan as stated above, SBD shall suspend the subcontractor for a minimum of five (5) years, or until such time as the subcontractor can show SBD that it is ready, willing and able to perform if five (5) years has elapsed.

(8)

Appeals.

A.

Any firm that is denied certification, decertified, or issued a determination of noncompliance with the requirements of this ordinance or its implementing order may appeal such action to the County Mayor or designee by submitting a written request to the County Mayor or designee along with a nonrefundable filing fee to be established by implementing order, within 30 days of issuance of the notice. Upon timely receipt of a request for an administrative hearing, the County Mayor or designee shall appoint a hearing officer pursuant to Section 8CC-2 of the Code of Miami-Dade County, Florida, and fix a time for an administrative hearing thereon. Such hearing officers may be paid a fee for their services, but shall not be deemed County officers or employees within the purview of Sections 2-10.2, or 3-11.1, or otherwise.

B.

Upon completion of the administrative hearing, the hearing officer shall transmit his/her findings of facts, conclusions and recommendations together with a transcript of all evidence taken before him/her and all exhibits received by him/her, to the Mayor or designee, who (i) may sustain, reverse or modify the hearing officer's recommendations and (ii) shall render a final decision, in writing. The determination of the Mayor may be reviewed by an appropriate court in the manner provided in the Florida Rules of Appellate Procedure.

C.

The prevailing party shall not incur any additional expenses, fees or penalties. The unsuccessful appellant shall be responsible for all additional fees, costs and penalties associated with the appeal.

(9)

County responsibilities. Small Business Development (or other County department designated by the County Mayor or designee) shall:

1.

Administer, or provide oversight for, the CSBE program and incentives outlined in this section;

2.

Provide staff assistance to the review committee and the advisory board;

3.

Compile and maintain the data necessary to make the appropriate determinations as to the certification and decertification of CSBEs, and to make recommendations for the application of contract measures to a given contract;

4.

Ensure that an integrated system exists for information gathering, reporting, and statistical analysis including (but not limited to) interfacing with other County financial systems such as FAMIS, Seaport, Aviation, HUD and WASAD to obtain actual amount of work orders authorized to firms versus the project award amount (for prime contractors as well as for subcontractors), and interfacing with the GSA mainframe system to access data on vendors and awards;

5.

Monitor all contracts for which program measures have been applied in terms of contractor and subcontractor compliance with the provisions of this ordinance;

6.

Provide assistance in technical and financial matters including:

a.

Assistance in increasing the ability of CSBEs to compete effectively on contracts;

b.

Conduct of seminars on contract management; and

c.

Assistance in identifying and solving problems on projects;

7.

Review and investigate reports of noncompliance, and make the appropriate recommendations to the County Mayor as to penalties to be invoked;

8.

Prepare an annual report for the Board of County Commissioners on the results of the CSBE Program;

9.

Prepare quarterly reports for the advisory board on the results of the CSBE Program;

10.

SBD shall assign a CSBE coordinator to each county department issuing capital construction contracts whose responsibility shall be to seek out contracting opportunities for CSBEs and serve as liaison between SBD and the department; and

11.

Upon completion of a contract or after final payment on a contract SBD shall review the final reporting of payments to subcontractors and other project documents to include final payments and make a determination as to whether the bidder met the CSBE measure. If the bidder has not met the CSBE measure, SBD will notify the bidder in writing of the deficit and corresponding sanctions for contractual violations.

(10)

Notwithstanding the requirements of this Section, the Mayor or his designee is hereby expressly authorized and directed to establish an expedited process for the creation, review and approval of measures relating to Economic Stimulus Projects subject to Section 2-8.2.7 of this Code. Such process shall be set forth in an administrative order.

(Ord. No. 97-52, § 1, 5-20-97; Ord. No. 97-158, § 1, 9-23-97; Ord. No. 99-31, § 1, 3-18-99; Ord. No. 00-17, § 1, 2-8-00; Ord. No. 01-65, § 1, 3-20-01; Ord. No. 01-116, § 1, 7-10-01; Ord. No. 01-158, § 1, 9-25-01; Ord. No. 02-29, § 1, 2-26-02; Ord. No. 03-121, § 1, 5-6-03; Ord. No. 05-119, § 1, 7-7-05; Ord. No. 07-16, § 1, 2-6-07; Ord. No. 08-40, § 1, 4-8-08; Ord. No. 08-92, § 3, 7-17-08; Ord. No. 09-41, § 1, 6-2-09; Ord. No. 10-89, § 1, 12-7-10; Ord. No. 11-22, § 1, 5-3-11; Ord. No. 12-05, § 2, 2-7-12; Ord. No. 14-60, § 1, 7-1-14; Ord. No. 14-98, § 3, 10-7-14; Ord. No. 15-29, § 3, 5-5-15; Ord. No. 15-30, § 3, 5-5-15; Ord. No. 16-50, § 1, 5-17-16; Ord. No. 16-83, § 1, 9-7-16; Ord. No. 18-33, § 1, 4-10-18)