§ 3-453. Responsibilities of the fairness in construction board.

(a)

Goal setting. Prior to solicitation, the director and appropriate city staff or, in case of an incentive project, the director and a representative of the developer of the incentive project shall present to the board MBE/WBE goals for each proposed construction contract as recommended by the director and city staff or developer, as applicable. The board shall determine within 15 calendar days of being notified of the same, whether any goals are appropriate and, if so, shall set the goals in conformance with section 3-431 hereof. The goals shall be included in the invitation for bid or request for proposals. Except as otherwise provided in this division, no invitation for bid or request for proposals shall be released until goals have been requested and set, or until the city department soliciting the contract has been notified by the director that goals will not be established.

(b)

Any bidder or proposer on a city construction project having a construction contract for which the board has jurisdiction pursuant to subsection 3-431(c) may, prior to award of the construction contract (except in the case of a substitution, in which case shall necessarily occur after the award of a contract) may, prior to award of the construction contract, appeal to the board any determination by the director concerning the following issues:

(1)

Waiver of the individual contract goals pursuant to subsection 3-437(a); or

(2)

Substitution of an MBE/WBE listed on a contractor utilization plan pursuant to section 3-441; or

(3)

Substitution of an MBE/WBE listed on a contractor utilization plan pursuant to section 3-443; or

(4)

Modification of the percentage of the participation on a contractor utilization plan pursuant to section 3-443.

(c)

Any contractor having a contract for which the board has jurisdiction pursuant to subsection 3-431(e), may prior to the award of a construction contract (except in the case of a substitution, in which case shall necessarily occur after the award of a contract) appeal to the board any determination by the director concerning the following issues:

(1)

MBE/WBE contract credit towards meeting the percentage of MBE/WBE participation identified in the contractor utilization plan; or

(2)

Substitution of an MBE/WBE listed on a contractor utilization plan pursuant to section 3-443; or

(3)

Modification of the percentage of the participation on a contractor utilization plan pursuant to section 3-443.

(4)

The assessment or amount of liquidated damages.

(d)

Appeals shall be made to the board by filing with the director within 15 calendar days after notice of the director's determination through a written request for review by the board, stating the grounds of such appeal with specificity. The director shall promptly forward a copy of any appeal to the chairperson and members of the board.

(e)

To the extent a bidder, proposer, or contractor is notified that any determination made by the director is final and appealable to the board, and such bidder, proposer, or contractor fails to file an appeal of such final determination within 15 calendar days of such final determination, such failure to file a timely appeal shall constitute a waiver of the right of a bidder, proposer, or contractor to appeal the director's determination and such person shall be estopped to deny the validity of any determination which could have been timely appealed.

(f)

Authority of board.

(1)

The board shall have authority to decide appeals, and may reverse, affirm or modify determinations of the director, as applicable set forth in subsections (b) and (c) hereof. The board shall have the power to inquire into all the facts and circumstances of appeals within its jurisdiction and may hold hearings for such purpose. The board shall not hold hearings to inquire into those matters which the board, upon recommendation by the city attorney or her designee, deems to be frivolous and without merit and whose determination shall be final.

(2)

Except for those appeals which are found to be frivolous in accordance with subsection 3-353(f)(1), the board shall hold a hearing within 30 calendar days of the date of filing of a timely appeal. The failure to hold a hearing or determine an appeal frivolous within the prescribed time shall result in the director's determination being overturned without further action, unless the delay was requested or caused by the party filing the appeal.

(3)

The board shall issue a written report of its decision within the later of 30 calendar days of the filing of a timely appeal or 14 calendar days from the conclusion of the hearing and its decision shall be final for all purposes. Notwithstanding the foregoing, the city council shall retain the right to waive any provision of this article in accordance with subsection 3-437(b).

(g)

Any bidder, proposer or contractor whose interests will be affected by any appeal may be permitted by the board to intervene in the appeal.

(h)

In the event an appeal is pending before the board and the project is presented to the city council for consideration prior to the board's issuance of its decision, the city council shall be notified by including in the fact sheet notification that there is an appeal pending before the board. The city council may elect to delay award of the project until after the board issues its decision.

(i)

For incentive agency projects, when the applicable incentive agency and the director are unable to reach a mutual determination within 30 days, the board shall have the authority to make determinations as to whether good faith efforts have been made and on the assessments and amount of liquidated damages, pursuant to sections 3-437, 3-441, 3-443, and 3-447. The board shall have the power to inquire into all the facts and circumstances and hold hearings for such purpose. When agreement cannot be reached after the requisite 30 days, the director or applicable agency shall notify the board of such disagreement within five days. Upon notification by the director or applicable agency, the board shall hold a hearing within 30 calendar days. The board shall issue its determination as to whether good faith efforts have been made within 15 calendar days from the conclusion of the hearing and its decision shall be final for all purposes. Notwithstanding the foregoing, the city council shall retain the right to waive any provision of this section.

(Ord. No. 180535 , § 1, 10-25-18)