§ 3-421. Definitions.

(a)

The following definitions apply to this division 2, except where an alternate definition has specifically been made applicable:

(1)

Affidavit of intended utilization: An affidavit, in a form prescribed by the director, stating the bidder's intent to meet the MBE/WBE goals or to timely request a waiver of the MBE/WBE goals.

(2)

Award of contract: Execution of a contract and, if necessary, city council or park board authorization.

(3)

Bid: An offer to enter into a contract submitted pursuant to an invitation for bid.

(4)

Bidder: Any person who submits a bid to the city or an incentive agency in response to an invitation for bid.

(5)

Bid opening: The event whereby bids are opened and read aloud at the place, date and time specified in the invitation for bid and any subsequent amendment thereto.

(6)

Bid shopping: The practice whereby a person divulges or requires another to divulge a subcontractors bid or proposal for the purpose of securing a lower bid or proposal.

(7)

Board or boards: Fairness in construction board, fairness in professional services and goods board, or both, as applicable.

(8)

Budget: The total costs reflected within a contract for which MBE/WBE goals are to be set pursuant to this division.

(9)

City: City of Kansas City, Missouri.

(10)

City department: Department of the city or the division of procurement services when acting on behalf of a department director.

(11)

Commercially useful function: Real and actual services that are a distinct and verifiable element of the contracted work based upon private sector trade or industry standards. Determination that an enterprise performs a commercially useful function will be made based on the following considerations:

a.

An MBE or WBE performs a commercially useful function when it is responsible for execution of the ordinary and necessary work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the MBE or WBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining the quality and quantity, ordering the material, installing (where applicable) and paying for the material itself. To determine whether an MBE or WBE is performing a commercially useful function, one must evaluate the following:

1.

The amount of work subcontracted; and

2.

Industry practices; and

3.

Whether the amount the enterprise is to be paid under the contract is commensurate with the work it is actually performing; and

4.

Whether the MBE or WBE has the skill and expertise to perform work for which it is being utilized; and

5.

The credit claimed for its performance of the work; and

6.

Other relevant factors.

b.

An MBE or WBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of MBE or WBE participation. In determining whether an MBE or WBE is such an extra participant, one must examine similar transactions, particularly those in which MBEs or WBEs do not participate.

c.

An MBE or WBE firm is not performing a commercially useful function if the MBE or WBE subcontracts a greater portion of the work on a contract or purchases a greater amount of material than would be expected on the basis of normal industry practice for the type of work involved.

d.

Whether the MBE or WBE is participating in the contract as a middle person or broker in the normal course of that business or trade by purchasing the goods and/or services from another business, thereby qualifying expenditures for such goods and/or services to be counted toward utilization requirements for MBEs and WBEs.

e.

Whether the MBE or WBE is responsible for the purchase and quality of, and payment for, materials used to perform its work under the contract.

There shall be a rebuttable presumption that, when the MBE or WBE subcontracts a greater portion of the contract work than normal industry practice, the MBE or WBE is not performing a commercially useful function.

(12)

Construction contract: A contract for the construction, reconstruction, improvement, enlargement or alteration of any fixed work or construction site preparation, of which any amount is paid for out of city or agency funds.

(13)

Contract: Any contract more than $300,000.00, and all other city or agency contracts more than $160,000.00 the majority of either of which is paid for out of city funds or in which an incentive agency is a party, except the following:

a.

Personal services contracts; and

b.

Emergency contracts; and

c.

Imprest accounts in the nature of petty cash funds.

(14)

Contractor: Any person who enters into a contract with the city or an incentive agency.

(15)

Contractor utilization plan or CUP: The statement, in a form prescribed by the director, that must be submitted by a bidder or proposer pursuant to section 3-433 and that states its plan to utilize qualified MBEs and/or WBEs in the performance of a contract.

(16)

Day: A calendar day, except as otherwise indicated.

(17)

Department or HRD: The human relations department or the division within the city manager's office that is assigned to perform the tasks delegated to the human relations department by this division.

(18)

Department director: Person appointed by the city manager to be responsible for a city department or the manager of procurement services when acting on behalf of a department director or the city.

(19)

Developer: Entity seeking tax increment financing or city tax abatement incentives from an incentive agency described in subsection 3-425(b) or 3-425(c).

(20)

Director: The director of the human relations department or his authorized representative, or the person designated by the city manager to perform the tasks delegated to the director of the human relations department by this article.

(21)

Disadvantaged business enterprise (DBE): A business concern that meets the federal requirements for certification as a DBE.

(22)

Economic disadvantage: A diminished ability to compete in the free enterprise system due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are found to be socially disadvantaged. In determining whether an individual is economically disadvantaged, the director shall follow the guidance provided in appendix E to 49 CFR Part 26.

(23)

Expertise: Experience or training in a specialized field that is critical to the firm's operations, indispensable to the firm's potential success, and specific to the type of work the firm performs.

(24)

Goal: A numerical objective stated as a percentage of contract dollars for participation by qualified MBEs and WBEs in contracts.

(25)

Incentive agency or agency: Each of the commissions, agencies and authorities described in subsection 3-425(b) or 3-425(c), or any entity with the authority to recommend to the city tax increment financing or tax abatement.

(26)

Incentive agency head : Person authorized to act on behalf of an incentive agency.

(27)

Incentive project : A project receiving tax increment financing or tax abatement or exemption from an incentive agency pursuant to contracts described in subsections 3-425(b) and 3-425(c).

(28)

Invitation for bid: A request or invitation for submission of an offer to enter into a contract pursuant to a competitive bidding process.

(29)

Kansas City metropolitan area: The Missouri counties of Cass, Clay, Jackson and Platte and the Kansas counties of Johnson, Leavenworth and Wyandotte.

(30)

Letter of intent to subcontract: A document, in a form prescribed by the director that demonstrates the prime contractor or developer's intent to enter a contractual agreement with a selected MBE/WBE.

(31)

M/W/DBE Kansas City Mo. Online Directory or Directory: A source list compiled, maintained and updated by the human relations department containing (when provided) the names, mailing addresses, e-mail addresses and facsimiles of certified MBE/WBE/DBEs and the NAICS codes denoting scopes of work for which each such MBE/WBE/DBE is certified, which MBE/WBE/DBEs are in the business of providing construction, professional services and other services and goods from whom bids and proposals can be solicited. The directory is to facilitate identifying MBE/WBE/DBE subcontractors with capabilities relevant to general contracting requirements and to particular solicitations.

(32)

Mentor/protégé: A relationship between an MBE or WBE (protégé) and a person in the same trade or industry (mentor). The mentor/protégé relationship is to provide technical, financial, bonding, equipment and personnel assistance. The purpose of the relationship is to increase the capacity of MBE/WBEs to perform contracts.

(33)

Minority: A person who is a citizen or lawful permanent resident of the United States and who is:

a.

African American, a person whose origins are in any of the Black racial groups of Africa, and who has historically and consistently identified himself or herself as being such a person; or

b.

Hispanic American and/or Latino American, a person whose origins are in Mexico, Central or South America, or any of the Spanish speaking islands of the Caribbean, (for example Cuba and Puerto Rico) regardless of race, and who has historically and consistently identified himself or herself as being such a person; or

c.

Asian and/or Pacific Islander American, a person whose origins are in any of the original peoples of the Far East, Southeast Asia, the islands of the Pacific or the Northern Marianas, or the Indian Subcontinent, and who has historically and consistently identified himself or herself as being such a person; or

d.

Native American, a person having origins in any of the original peoples of North America, and who maintains tribal affiliation or demonstrates at least one-quarter descent from such groups, and who has historically and consistently identified himself or herself as being such a person; or

e.

On a case-by-case basis, an individual found by the director to have been subjected to individualized prejudice or cultural bias within American society within the city's marketplace and has demonstrated economic disadvantage and social disadvantage as defined in this section.

(34)

Minority business enterprise (MBE): A for-profit small business concern that:

a.

Is at least 51 percent owned, managed, and independently controlled by one or more minorities; and

b.

Has a real and substantial presence in the Kansas City metropolitan area as defined by subsection 3-461(c) and

c.

Meets the business size standards imposed by 13 CFR 121.201 as subsequently amended and this division; and

d.

Performs a commercially useful function; and

e.

Is certified by the human relations department.

Beginning October 1, 2019, a for-profit small business concern must meet the following additional criteria to qualify as a MBE:

f.

Whose owner's or, for businesses with multiple owners, each individual owner's personal net worth (as defined in this section) is equal to or less than the permissible personal net worth amount determined by the U.S. Department of Transportation to be applicable to its DBE program.

Only persons meeting each of the above criteria shall be deemed an MBE for purposes of this division. In order to be credited towards the goals on a particular solicitation for a particular scope of work, the MBE shall be certified as of or listed on the directory on the date a contractor utilization plan is submitted.

(35)

Person: One or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, fiduciaries and other organizations; except "person" does not include any local, state or federal governmental entity.

(36)

Personal net worth: The net value of the assets of an individual after total liabilities is deducted. An individual's personal net worth does not include the individual's ownership interest in a certified M/WBE or applicant for such certification or the individual's equity, if any, in his or her primary place of residence. An individual's personal net worth includes only his or her share of assets held individually or jointly with the individual's spouse.

(37)

Personal services contract: A contract or agreement of employment with an individual who is not acting as an independent contractor and who is not part of the cities classified or unclassified service.

(38)

Principal place of business: The location at which the business records of the MBE/WBE applicant concern are maintained and the location at which the minority or woman individual owner who manages and controls the day-to-day operations spends the majority of his/her working hours.

(39)

Proposal: Any offer or list of qualifications submitted to the city in response to a request for proposal.

(40)

Proposer: Any person who submits a proposal to enter into a contract, either in response to a request for proposals, request for qualifications or otherwise, but not pursuant to an invitation for bid.

(41)

Qualified: Possessing the demonstrated ability to perform the contracted task.

(42)

Request for proposals: An invitation for submission of an offer to enter into a contract pursuant to a negotiated process and not a competitive bid, including requests for qualifications.

(43)

Social disadvantage : A diminished ability to compete in the free enterprise system due to at least one (1) objective, distinguishing feature that has contributed to social disadvantage, such as race, ethnic origin, gender, sexual orientation, or disability. In determining whether an individual is socially disadvantaged, the director shall follow the guidance in appendix E to 49 CRF part 26.

(44)

Supplier: An enterprise that owns operates or maintains a store, warehouse or other establishment in which materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought, kept in stock and regularly sold or leased to the public in the usual course of business.

(45)

Supply broker: An enterprise that acts as an agent in negotiating contracts for the purchase of materials, supplies, articles or equipment but does not itself own, operate or maintain a store, warehouse or other establishment where such materials, supplies, articles or equipment are bought, kept in stock and regularly sold or leased to the public in the usual course of business.

(46)

Woman: A person who is a citizen or lawful permanent resident of the United States and who is a female.

(47)

Women's business enterprise (WBE): A for-profit small business concern that:

a.

Is at least 51 percent owned, managed, and independently controlled by one or more women; and

b.

Has a real and substantial presence in the Kansas City Metropolitan Area as defined by section 3-461(c); and

c.

Meets the business size standards imposed by 13 CFR 121.201 and as subsequently amended and this division; and

d.

Performs a commercially useful function; and

e.

Is certified by the human relations department; and

Beginning October 1, 2019, a for-profit small business concern must meet the following additional criteria to qualify as a WBE:

f.

The owner's or, for businesses with multiple owners, each individual owner's personal net worth is equal to or less than the permissible personal net worth amount determined by the U.S. Department of Transportation to be applicable to its DBE program.

Only persons meeting each of the above criteria shall be deemed a WBE for purposes of this division. In order to be credited towards the WBE goals on a particular solicitation for a particular scope of work, the WBE shall be certified as of or listed in the directory on the date a contractor utilization plan is submitted.

(Ord. No. 180535 , § 1, 10-25-18)