SECTION 6  GOOD FAITH EFFORTS

MBE-6.01  Good Faith Efforts

If for any reason, a bidder or offeror is unable to achieve the contract goal for certified DBE/MBE participation, the bidder or offeror may request in writing a waiver to the goal.  The bidder or offeror must justify, with sufficient written documentation, the bidder or offeror's good faith efforts to achieve the contract goal.  These provisions are in effect during the life of the contract.

The following is a listing of efforts that can be made and will be considered a part of bidder's good faith efforts to meet the contract goal.

A.            Coordinating any pre-bid meetings at which DBE/MBEs could be informed of contracting and subcontracting opportunities.

B.            Advertising in general circulation, trade association, and minority focused media concerning the subcontract opportunities.

C.            Providing written notice to all certified DBE/MBEs who are certified in work areas and who have capabilities of the contract for which their participation is solicited.  This notice should be provided in sufficient time to allow the DBE/MBEs to respond to the written solicitation in accordance with COMAR 21.11.03.09B(2)(b)(ii) providing a minimum of 10 days to respond.

D.            Following up initial solicitations of interest by contacting DBE/MBEs to determine if the DBE/MBEs are interested.  Detailing the efforts with the names, addresses, dates, and telephone numbers of the certified DBE/MBEs contacted along with a description of the information provided to certified DBE/MBEs regarding the plans, specifications and anticipated time schedule for portions of the work to be performed.

E.            Selecting portions of the work to be performed by DBE/MBEs in order to increase the likelihood of the DBE/MBE goals being achieved.

F.            Providing interested DBE/MBEs with adequate information about the plan specifications and requirements of the contract.

G.           Negotiating in good faith with interested DBE/MBEs.

H.            A bidder or offeror shall not reject a DBE/MBE as unqualified without sound reasons based on a thorough investigation of DBE/MBE capabilities.  For each certified DBE/MBE that is rejected as unqualified or that placed a subcontract quotation or offer that the bidder or offeror considers not to be acceptable, the bidder or offeror shall provide a written detailed statement listing the reasons for this conclusion.

I.             Making an effort to assist interested DBE/MBEs in obtaining bonding, lines of credit, or insurance as required by the contractor.

J.             Effectively using the services of available minority/women contractors' groups, local, state and Federal minority/women business assistance offices and other organizations to provide assistance in the recruitment and placement of DBE/MBE subcontracts.

K.            As a minimum, if for any reason, the contractor is unable to award subcontracts or procure supplies and services with a value that is equal to the minimum goal established in the solicitation, the contractor will document its "Good Faith Efforts" in writing, with justification to include, but not limited to, the following:

1.            A statement detailing the efforts made to contact and negotiate with certified businesses including:

a.    The names, addresses, dates, and telephone numbers of the certified businesses who were contacted; and

b.    A copy of the information provided to the certified DBE/MBEs regarding the plans, specifications and anticipated time schedule for portions of the work to be performed.

2.            A detailed statement listing the items or selected portions of work proposed to be performed by certified businesses in order to increase the likelihood of achieving the stated goal.

3.            A statement detailing the reasons for a contractor's conclusion that a certified DBE/MBE subcontractor is not qualified to perform.

4.            A list of certified businesses contacted but found to be unavailable.  This list should be accompanied by Minority Contractor Unavailability Certificates (Form D-EEO-005) signed by the minority contractor or a statement from the apparent low bidder that the certified businesses refused to sign the Minority Contractor Unavailability Certification.

L.             In making a determination of Good Faith Efforts the agency head or designee may consider engineering estimates, catalogue prices, general market availability and availability of certified DBE/MBEs in the area in which the work is to be performed, other bids or offers and subcontract bids or offers substantiating significant variances between certified DBE/MBE and non-DBE/MBE costs of participation, and their impact on the overall cost of the contract to the State and any other relevant factors.  The contractor will not receive a waiver in instances where they can (or want to) perform work with their own forces.

M.          If and when the successful bidder has demonstrated his complete compliance with these procedures and this is thoroughly documented, the Administration Representative will refer the request to the Administrator.

N.           Based on the Administration Representative's evaluation, the Administrator will determine the adequacy of the apparent low bidder's MBE Participation Program.  The Administrator will determine if it is in conformance with the MDOT MBE Program.

O.           Unless an objection is filed by the apparent low bidder in writing within fifteen (15) days of the Administrator's determination, the Administrator's determination is final.  In the event an objection is filed, the Administrator will send the apparent low bidder a Notice of Opportunity to meet with the Administrator, indicating the date, time, and place.  At that time, the Administrator may request additional information from the apparent low bidder.

P.            A copy of the determination will be sent to the apparent low bidder and other interested parties.  The apparent low bidder and other interested parties may appeal the Administrator's decision to the Secretary of Transportation.