§ 3-443. Modification or substitution.

(a)

A bidder, proposer, contractor, or developer shall not make any modification or substitution with regard to an approved contractor utilization plan unless the modification or substitution has first been requested of the director and approved. For city contracts after bid or proposal opening or after a contract is awarded, the director may approve substitutions of other qualified MBE/WBEs for those listed in the contractor utilization plan or approve modifications of the amount of participation listed in the contractor utilization plan, if the director determines or, in the case of incentive projects, the applicable incentive agency and the director mutually determine, except in the event the incentive agency and director fail to mutually agree, in which case the applicable board as determined by sections 3-449 and 3-451 determines that the bidder, proposer, contractor, or developer made and provided evidence of good faith efforts to substitute the listed MBE/WBE with other qualified MBE/WBEs for the listed scope of work or any other scope of work in the project, finds that the bidder, proposer, or contractor has not attempted intentionally to evade the requirements of this division and it is in the best interests of the city and the applicable incentive agency to allow a modification or substitution, and also finds one of the following:

(1)

The listed MBE/WBE is non-responsive or cannot perform; or

(2)

The listed MBE/WBE has increased its previously quoted price to the bidder, proposer, contractor, or developer without a corresponding change in the scope of the work; or

(3)

The listed MBE/WBE has committed a material default or breach of its contract with the contractor or developer; or

(4)

Requirements of the scope of work of the contract have changed and render subcontracting not feasible or not feasible at the levels required by the goals established for the contract; or

(5)

The listed MBE/WBE is unacceptable to the contracting department; or

(6)

The listed MBE/WBE thereafter had its certification revoked.

The process for such determination by the applicable board in those circumstances in which the director and applicable incentive agency fail to mutually agree on an incentive project shall be as described in sections 3-450 and 3-453.

(b)

If there is an increase in the quantity of the scope of work performed by an MBE/WBE, contractor or developer shall make good faith efforts to use such MBE/WBE for the increased work. If extra work not within the general scope of the contract and in excess of $160,000.00 is required, the director shall assign MBE/WBE goals for the extra work, if appropriate, and the contractor or director shall make good faith efforts under the circumstances to achieve the goal.

(c)

Bid shopping is prohibited.

(d)

For incentive projects, the director shall submit to the relevant incentive agency, his or her initial determination of whether a modification or substitution is appropriate to the developer and as soon as practicable thereafter the director and the incentive agency shall mutually agree as to whether a modification or substitution is appropriate prior to submitting final determination to the developer; provided, however, to the extent the incentive agency and director fail to agree within 30 calendar days, the applicable board determined by sections 3-449 and 3-451 shall determine good faith efforts and the board's determination shall be final. The process for such determination shall be as described in sections 3-450 and 3-453.

(Ord. No. 180535 , § 1, 10-25-18)