§ 2-8.2.4. Hispanic Business Enterprise Program.

(1)

Title. This section shall be referred to as the Hispanic Business Enterprise HBE Program.

(2)

Definitions. The following definitions shall apply in this section:

(a)

Available or availability means to have, prior to bid submission, the ability to provide goods or services under a contract, by having:

1.

Reasonably estimated, uncommitted capacity;

2.

All necessary licenses, permits, registrations and certifications;

3.

The ability to obtain bonding that is reasonably required consistent with normal industry practice; and

4.

The ability to otherwise meet bid specifications.

(b)

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, letter of interest or offer for a contract.

(c)

Bid preference means an amount deducted from the total bid price in order to calculate the bid price to be used to evaluate the bid.

(d)

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

(e)

Broker means an individual or business that acts as a contact for the purchase of goods or services from a supplier and transfers funds to a non-HBE in a manner that does not add economic value to the purchase, except where such conduct is normal industry practice.

(f)

Commercially useful function means contractual responsibility for the execution of a distinct element of the work of a contract by a HBE and the carrying out of its contractual responsibilities by actually performing, managing, and supervising the work involved other than acting as a broker. The determination of whether an activity is a commercially useful function shall include the evaluation of the amount of work subcontracted; normal industry practices; the skills, qualifications, or expertise of the enterprise to perform the work; whether the business owner himself or herself performs, manages, and/or supervises the work involved; and other relevant factors.

(g)

Construction means the building, maintaining, altering, or repairing of a public improvement.

(h)

Contract means an agreement proposed by County or Public Health Trust staff, or approved by the County Commission or Public Health Trust in any of the following classes:

1.

Procurement of goods and services not included in the classes 2, 3, and 4 below;

2.

Construction of a public improvement;

3.

Professional services subject to Section 287.055, Florida Statutes, and Section 2-10.4 of the Code of Miami-Dade County; or

4.

Other professional services including but not limited to accounting, legal, health care, consulting and management services.

5.

Contract does not mean an agreement to purchase, lease, or rent real property; grant licenses, permits, or franchises; operate concessions; or make grants.

(i)

Goods means any tangible product, material or supply that is not a service.

(j)

Hispanic means a person who is a citizen or lawful resident of the United States who has origins in Cuba, Mexico, Puerto Rico, Central or South America or other Spanish or Portuguese culture regardless of race.

(k)

Hispanic business enterprise or HBE means a business that:

1.

Is owned and controlled by one (1) or more Hispanic individuals;

2.

Has its actual place of business in Miami-Dade County; and

3.

Is certified in accordance with this section.

(l)

HBE selection factor means an element specified in bid documents that designates as one (1) criteria for choosing among bids that the bidder is:

1.

An HBE; or

2.

A joint venture owned and controlled by a HBE;

3.

A non-HBE that demonstrates significant utilization of HBEs in accordance with subsection (3)(c)3c, below.

(m)

Joint venture means an association of two (2) or more persons, partnerships, corporations, other business entities or any combination of the above, at least one (1) of which is a Minority or Woman business enterprise, certified in accordance with this section that is lawfully established to carry on a single business activity that is limited in scope and duration.

(n)

Owned and controlled means a business that is at least fifty-one (51) percent owned by one (1) or more Hispanic individuals or, in the case of a publicly owned business, at least fifty-one (51) percent of the stock of which is owned by one (1) or more Hispanic individuals, and whose management and daily business operations are controlled by one (1) or more such individuals. The determination of whether a Hispanic owner has demonstrated such control shall include an evaluation of the following:

1.

The owner's experience in the industry in which certification is sought.

2.

The owner's independence in making business policy and day-to-day operational decisions;

3.

The owner's technical competency or knowledge of technical requirements in the industry in which certification is sought; and

4.

In addition to the above standards, special consideration will be given to the following circumstances in determining such control:

(i)

Newly formed businesses and businesses whose ownership and/or control has recently changed will be closely scrutinized to determine the reasons for the timing of the formation of or change in the business.

(ii)

A previous and/or continuing employer-employee relationship between or among present owners will be carefully reviewed to ensure that the employee-owner has actual management responsibilities and capabilities discussed in this section.

(iii)

Any relationship between a HBE and a business which is not a HBE which has an interest in the HBE will be carefully reviewed to determine if the interest of the non-HBE conflicts with the ownership and control requirements of this section.

(o)

Participation goals means percentage objectives for participation of HBEs in County contracting opportunities based on the percentage of Hispanic-owned businesses in Miami-Dade County as reported by the Survey of Minority-Owned Business Enterprises by the U.S. Department of Commerce, Bureau of the Census, or its equivalent, and such other relevant factors as the County Commission may establish.

(p)

Project goal means a proportion of a total contract value stated as a percentage to be awarded to a HBE in contracts that create a pool of qualified contractors from which the County selects pool members to perform the work of the contract.

(q)

Registered HBE means a business that has registered with the relevant county agencies to compete for county contracts and has declared by registration for statistical purposes to be a HBE, but has declined to be certified or to participate in the HBE program.

(r)

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

(s)

Set-aside means the designation of a given contract for competition among HBEs.

(t)

Subcontractor goal means a proportion of a total contract value stated as a percentage to be subcontracted to HBEs to perform a commercially useful function.

(u)

Work means the provision of goods or services.

(3)

Program.

(a)

Application. Except where federal or state laws or regulations mandate to the contrary, the provisions of this section shall be applicable to all contracts funded in whole or in part by County funds. The County Manager shall prepare administrative orders, bid and contract documents implementing the provisions of this section. The County Manager by administrative order may exclude classes of contracts, or parts thereof, from application of this section. The words County Manager in this section shall mean the County Manager or his or her designee.

(b)

Participation goals. The County Commission shall set participation goals for HBEs annually with respect to award of county contracts by contract class in relevant market segments.

1.

The County Commission and Public Health Trust shall make every reasonable effort to meet participation goals. They may use the contract measures specified in subsection (c) below only when the County Commission establishes a participation goal for the relevant market segment for the class of contract involved. Participation goals shall be used as guidelines and shall not be construed as a ceiling or floor to HBE participation.

2.

Accomplishment of participation goals shall be based on calculations that include, to the extent data is available:

a.

The total number of contracts awarded to;

b.

The dollar value of any and all contracts awarded to; and

c.

The actual dollars expended by the County and received by, certified and registered HBEs as contractors, subcontractors and joint ventures.

3.

The County Manager shall utilize the Planning Department and other county staff as appropriate to develop, propose and assess the accomplishment of participation goals. The County Manager shall compile this information on a quarterly basis and present it to the Board of County Commissioners, which shall set goals on at least an annual basis.

4.

The County Manager shall require County staff to make good faith efforts to meet participation goals, including making such good faith efforts a part of the performance evaluation and management by objectives of every appropriate department director and supervisor.

(c)

Contract measures. Based on recommendations from the County Manager, the County Commission or Public Health Trust may apply the following measures to contracts to address this section's findings of ethnic discrimination experienced by Hispanic business enterprises:

1.

Set-asides . The County Commission or Public Health Trust may determine it is in its best interest to waive competitive bidding or selection requirements and set aside a contract for HBEs in accordance with the following:

a.

The County Commission or Public Health Trust shall determine prior to bid advertisement that there are at least three (3) available HBEs to perform the set-aside contract; or

b.

The County Commission or Public Health Trust shall determine prior to bid advertisement that there are at least two (2) available HBEs to perform the set-aside contract and the following conditions are met:

i.

No HBE has been awarded a contract with the County or the Public Health Trust for the goods or services to be advertised in the eighteen (18) preceding months; and

ii.

The Department of Procurement Management has prepared an analysis of the price being offered by the recommended awardee to ensure that it is not excessive.

c.

Joint ventures that are owned and controlled by at least one (1) HBE may bid on set-aside contracts.

d.

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

e.

A HBE may compete for contracts that are set aside under the Black Business Enterprise and Women Business Enterprise Programs if certified in accordance with these programs.

2.

Subcontractor and project goals:

a.

The County Commission or Public Health Trust may establish subcontractor or project goals to be met by HBEs in a contract based on estimates made prior to bid advertisement of the quality, quantity and type of opportunities provided by the contract, and of the availability of at least three HBEs to afford effective competition in providing goods or services under the contract. In instances where there are two (2) available HBEs, the Commission or Trust may apply a subcontractor or project goal where no HBE has participated as a subcontractor to a prime contractor having a contract with the County for the goods or services advertised within the preceding eighteen (18) months. Further, notwithstanding any other provision of this Section of the Code, where a subcontractor or project goal is applied when only two (2) HBEs are available, a bidder who fails to meet the goal may remain eligible for award if the bidder submits written evidence within two (2) business days from bid submission that the prices submitted by HBEs to the bidder were not reasonable compared to those submitted to the bidder by other non-HBE subcontractors. A HBE's bid will be considered reasonably competitive if its bid, for the same scope of work, is within 25 percent of the bid of comparably-sized non-HBE firms. After bid advertisement or other formal public notice, the established subcontractor or project goal may be reduced only with the approval of the County Commission or Public Health Trust.

b.

Bid documents shall require bidders to submit a form at the time of bid submission identifying all HBEs to be utilized to meet the subcontractor goal, the scope of work each will perform, including the goods or services each will provide, and the dollar value of such work. In order to assure at the time of bid submission agreement upon the above information between the bidder and the HBE, bid documents shall also require bidders to submit a form no later than two (2) business days after bid submission confirming such information through signed documents from the HBEs involved. Failure to submit the required forms at the specified time shall render the bid nonresponsive. Submission of a defective form shall render the bid voidable.

c.

In contracts with subcontractor or project goals for Black or Women business enterprises, a HBE certified as a Black or Women business enterprise shall be counted toward meeting the goal for one (1) category only. The prime bidder shall declare at bid submission toward which subcontractor goal a business enterprise certified in more than one (1) category shall count.

d.

Bidders whose bids fail to meet a subcontractor goal, in order to remain eligible for award of the contract, must submit evidence, no later than two (2) business days after bid submission, proving the lack of available HBEs to afford effective competition in providing goods or services under the contract to meet the goal. Inability of a HBE to obtain bonding at the bidder's request may not be sufficient proof of such HBE's lack of availability.

e.

A successful bidder that is a HBE or a joint venture owned and controlled by a HBE may comply with up to one-half (½) of the subcontractor goal set for the contract by performing work with its own forces.

f.

Bid documents shall provide that expenditures to subcontracting joint ventures shall be counted toward meeting specified goals only when such joint ventures are owned and controlled by at least one (1) HBE.

g.

Bid documents shall provide that:

i.

Only expenditures to subcontracting HBEs for performing a commercially useful function shall be counted toward meeting a subcontractor goal;

ii.

Expenditures to subcontracting HBEs for acting essentially as a broker to a non-HBE shall not be counted toward meeting a subcontractor goal; and

iii.

Expenditures to subcontracting HBEs who subcontract work further to non-HBEs shall not be counted toward meeting a specified goal unless such subcontracting receives prior approval from the Department of Business and Economic Development as consistent with normal industry practice.

h.

Bid documents shall allow bidders to challenge or protest a subcontractor or project goal by submitting no later than the time of bid submission the reasons for such challenge or protest in writing to the department responsible for the contract. Such challenges or protests by bidders after the time of bid submission shall not be heard by the County Commission or Public Health Trust.

3.

Bid preferences:

a.

The County Commission or Public Health Trust may authorize a bid preference on contracts which are to be awarded to the responsive and responsible bidder with the lowest price and which are not set aside. The bid preference shall be used only to evaluate a bid and shall not affect the contract price.

b.

Contracts may give a bid preference in an amount of up to ten (10) percent of the bid price to bidders that:

i.

Are HBEs;

ii.

Are joint ventures; or

iii.

Demonstrate significant utilization of HBEs in their purchases in Miami-Dade County of goods and services, as set forth in bid documents or administrative orders.

c.

Bidders that significantly utilize HBEs in their purchases in Miami-Dade County of goods or services, in order to receive a bid preference, shall list at the time of bid submission or as may otherwise be specified their purchases in Miami-Dade County of goods and services and their utilization of HBEs in such purchases for the twenty-four-month period prior to bid submission. Purchases in Miami-Dade County of goods and services required by any local, state or federal ethnic-conscious measures shall not be recognized for purposes of calculating bid preferences.

d.

Joint ventures must be approved prior to bid opening to establish the percentage of HBE participation which will be recognized. The HBE member of the joint venture shall perform work, manage the job and take financial risks in proportion to its level of participation in the joint venture. Agreements establishing joint ventures shall be in writing. Bid and contract documents shall require that the portion of the work to be performed by the HBE member of the joint venture be set forth in detail separately from the work to be performed by the non-HBE member.

4.

HBE selection factor. The County Commission or Public Health Trust may authorize the use of a HBE selection factor as one (1) basis for deciding among bids for contracts to be awarded upon criteria in addition to price and not set aside under subsection (3)(c)1 above.

a.

In bids that assign weights to evaluation or selection criteria, bid documents shall assign a weight of ten (10) percent to the HBE selection factor. In bids that do not assign weights to evaluation or selection criteria, bid documents shall provide that among bidders evaluated to be otherwise substantially equal, the HBE selection factor shall be the deciding factor for award of the bid.

b.

Any committee formed to evaluate a bid with a HBE selection factor shall include a voting representative from the Department of Business and Economic Development.

(d)

Review committee. The County Manager shall establish an administrative procedure for the review of each proposed County contract to which this section applies, including the establishment of a committee to recommend whether the measures provided in subsection (3)(c) above should be applied.

(e)

Certification.

1.

The County Manager shall implement eligibility criteria and procedures for entities to be certified as HBEs.

a.

Such criteria shall set limits on the size of HBEs based on regulations of the Small Business Administration of the U.S. Department of Commerce for "small business concerns," presently codified at 13 Code of Federal Regulations, Chapter 1, Part 121, Subpart A.

b.

Any HBE that exceeds the size limits established by this subparagraph shall be allowed to retain its certification for one (1) additional year from the date it is formally notified it has exceeded the size limits.

2.

The Department of Business and Economic Development shall maintain and publish at least every other week an updated list of HBEs, identifying each listed HBE based on the nature of the goods and/or services the HBE shall be certified to supply.

3.

The Department of Business and Economic Development shall not certify an applicant, shall not recertify a HBE, and shall decertify a HBE that fails to comply with the criteria or procedures for obtaining or maintaining certification. The Department of Business and Economic Development shall have authority to suspend the certification of a HBE during any appeal of a decertification decision.

4.

Certification shall be renewed annually, and must be in effect at the time of bid submission, bid award, and throughout the duration of the contract. HBEs experiencing changes in ownership shall notify the Department of Business and Economic Development within thirty (30) days of the effective date of such changes.

5.

Applicants and certified HBEs must perform a commercially useful function to be eligible for certification or remain certified.

6.

A Hispanic individual, alone or as a member of a group, shall be eligible to have a business certified as a HBE only if an Hispanic owner personally possesses the licenses and satisfies the qualifying requirements established by a board regulating the industry in which certification is sought.

7.

A Hispanic individual, alone or as a member of a group, shall own or control only one (1) HBE at a time and shall not own and control another separate business certified under the Black Business Enterprise or Women Business Enterprise Programs.

8.

A Hispanic individual, alone or as a member of a group, and any HBE may not hold more than twenty-five (25) percent equity ownership in any other HBE in the same or similar line of business. If a non-HBE in the same or similar line of business as an applicant or existing HBE has an equity ownership of such HBE that exceeds twenty-five (25) percent, the applicant or existing HBE shall not be certified.

9.

The Department of Business and Economic Development may require applicants and HBEs to submit information regarding their business operations, including but not limited to a breakdown of the applicant's or HBE's work force as to race, national origin and gender.

10.

Nothing in this section shall be interpreted to prohibit a Hispanic individual from being certified under the Black Business Enterprise or Women Business Enterprise Programs.

(f)

Prompt payment.

1.

The County Manager and the President of the Public Health Trust shall establish administrative procedures requiring that billings from HBEs that have signed contracts with Miami-Dade County or the Public Health Trust be promptly reviewed and payment made on those amounts not in dispute within thirty (30) days of receipt of billing.

2.

Contracts to which any of the provisions of subsection (3)(c)2 above are applied shall require that billings from HBEs that are under contract with the successful bidder be promptly reviewed and payment made to such HBEs on those amounts not in dispute within thirty (30) days of receipt by the successful bidder of such billings. Such contracts shall include provisions for subcontracting HBEs to grieve intentional, wrongful delays in payment by the successful bidder to the HBE and for penalties and sanctions for such delays, including debarment.

(g)

Sanctions for contractual violations. 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 section or its implementing administrative orders may 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 are resolved;

2.

Work stoppage;

3.

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

4.

In the event a bidder or HBE attempts to comply with the provisions of this section through fraud, misrepresentation, or material misstatement, the County shall, whenever practicable, terminate the contract or require the termination or cancellation of the subcontract for the project on which the bidder or HBE committed such acts. In addition, and as a further sanction, the County may impose any of the above-stated sanctions on any other contractor subcontracts the bidder or HBE has on County projects. In each instance, the bidder or HBE shall be responsible for all direct and indirect costs associated with such termination or cancellation including attorney's fees and costs.

(h)

Administrative penalties. The County Manager may impose, notwithstanding any other provision of this section, one (1) or more of the following penalties for violation of or noncompliance with this section or its implementing administrative orders and bid documents:

1.

The exclusion from county contracting and subcontracting for a specified period of time, not to exceed three (3) years, of a contractor, its individual officers, its shareholders with significant interests, and its affiliated businesses;

2.

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

3.

Where a contractor, its individual officers, shareholders with significant interests, or its affiliated businesses, attempts to comply with provisions of this section through fraud, misrepresentation or material misstatements, all such individuals and entities participating in the fraud, misrepresentation or material misstatement shall be excluded from County contracting, and HBE certification for a specified period of time, not to exceed five (5) years.

4.

If any individual or corporation, partnership or other entity, or any individual officer, shareholder with significant interests, director or partner of such entity, or affiliated business of such entity in an attempt to comply with the provisions of this section through fraud, misrepresentation, or material misstatement, all such individuals and entities participating in the fraud, misrepresentation or material misstatement shall be excluded from County contracting, subcontracting, and HBE certification for a specified period of time, not to exceed five (5) years.

(i)

Appeals.

1.

Appeals of decisions made under this section by the Department of Business and Economic Development or designees of the County Manager, other than contractual violations addressed in bid and contract documents, shall be made to the County Manager.

2.

Decisions by the County Manager under this section shall be final unless the County Commission agrees in its sole discretion to review any such decision.

3.

The County Manager shall designate procedures for the investigation, presentation and hearing of appeals.

(j)

County responsibilities. The Department of Business and Economic Development (or other County department designated by the County Manager) shall subject to budgetary constraints:

1.

Provide staff assistance to the Review Committee;

2.

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

3.

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

4.

Provide assistance in technical and financial matters including: assistance in increasing the ability to compete effectively on contracts; conduct seminars on contract management; and assistance in identifying and solving problems on projects;

5.

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

6.

Implement an outreach program to increase the number of certified HBEs;

7.

Prepare and publish quarterly and annually in at least one (1) newspaper of general circulation in the Hispanic community:

a.

A list of the names of all bidders awarded a contract with subcontractor goals, including the bidder's president or chief executive officer, the total dollar value of the contract, a brief description of the subject matter of the contract, the names of HBEs scheduled to participate on the contract, the dollar amount of the work awarded to such subcontractor HBEs, and any other relevant information;

b.

A list of all certified HBEs awarded set-aside contracts or identified as subcontractors in contracts with subcontractor goals, or selected to meet a project goal, including the HBE's president or chief executive officer, the total dollar value of the contract or subcontract, the number of persons employed by the HBE categorized by race, national origin and gender, and any other relevant information; and

c.

A list of the names of all bidders that significantly utilized HBEs in accordance with subsection (3)(c)3c, including the bidder's president or chief executive officer, the dollar value of the work demonstrating significant utilization, and any other relevant information.

8.

Prepare an annual report for the Board of County Commissioners including but not limited to an itemization of the number and dollar amounts of contracts to which the provisions of the ordinance have been applied; the number of HBEs benefiting from the program measures, and the amount and value of contracts or subcontract work awarded to HBEs; the actual dollars expended by the County on contracts to which the provisions of the ordinance have been applied; and the percentage of the total number and amount of County contracts so affected. This annual report shall also include an assessment of the progress and related recommendations.

(k)

Program review. The County Commission shall review the Hispanic Business Enterprise Program after receiving the annual report submitted by the Department of Business and Economic Development. In addition, within one (1) year of publication of the "Survey of Minority-Owned Business Enterprises" by the U.S. Department of Commerce Bureau of the Census or its equivalent, the County Commission shall determine whether to continue the ethnic-conscious measures authorized by this section. This review shall be based on materials presented by the County Manager, including the reports prepared by the Department of Business and Economic Development and such other information considered relevant.

(Ord. No. 94-95, § 2, 5-17-94; Ord. No. 95-179, § 1, 10-5-95; Ord. No. 02-226, § 1, 11-19-02)