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MBE/WBE Utilization
Policy Goal
The policy goal of the MBE/WBE Programs is to assure that minority business enterprises (MBE) and woman business enterprises (WBE) are given the opportunity to participate in contract and procurement for supplies, construction, equipment and services under any EPA grant or cooperative agreement.
The Policy applies to all contracts/procurement for supplies, construction equipment and services under any EPA grant or cooperative agreement.
Authority
A. Fair Share Goals
- In keeping with the principles set in the 1995 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 decision, the EPA issued its revised MBE/WBE program guidance, AGuidance for Utilization of Small, Minority and Women=s Business Enterprises in Procurement Under Assistance Agreements - 6010" in July 1997.
- The MBE Guidance requires Afair share@ goals for all Agency assistance programs.
- The eight percent MBE/WBE minimum participation goal contained in EPA=s FY 1993 Appropriations Act, Pub. L. No. 102-389 and the ten percent goal and the 10% MBE/WBE goal contained in the Clean Air Act Amendments of 1990 now serve as overall, national goals for Agency assistance programs.
B. Negotiations of Fair Share Goals
- Projects will comply with the MBE/WBE requirements. This includes ensuring adequate records are retained to demonstrate compliance. See 40 C.F.R. '31.36(B)(9), 40 C.F.R. '31.42, 40 C.F.R. 35.3165(C)(2)
C. Good Faith Efforts
- The six affirmative steps are described in the CWSRF regulations at 40 C.F.R. '35.3145(d)(1)-(6), they represent good faith efforts to attract and utilize MBE/WBEs.
D. Documentation/Reporting
- EPA may take remedial action under 40 CFR '30.62 or 31.43 for a recipient=s failure to comply.
Negotiation of Fair Share Goals
- A fair share objective is a percentage based on the capacity and availability of qualified MBEs, and WBEs in the relevant geographic market for the procurement categories of construction, equipment, services and supplies compared to the number of all qualified entities in the same market for the same procurement categories.
- EPA requires Afair share@ MBE/WBE procurement goals for construction, equipment, services and supplies.
- Those goals are negotiated between EPA and States and/or recipients of EPA financial assistance awards.
- Separate MBE and WBE goals should be clearly reflected in the analysis as the EPA requires separate goals for MBEs and another for WBEs for each of the four procurement categories.
- The 8% MBE/WBE goal and the 10% MBE/WBE goal are treated by EPA as overall national goals. This allows for smaller or larger Afair share@ objectives to be negotiated for particular grants and cooperative agreements based on the availability standard.
Good Faith Efforts
Good faith efforts are activities by a recipient or its prime contractor to increase MBE/WBE awareness of procurement opportunities through race/gender neutral efforts.
EPA offers the following examples to assist recipients and prime contractors in carrying out the good faith efforts.
(1) Ensure MBE/WBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities. For Indian Tribal, State and local Government recipients, this will include placing MBE/WBEs on solicitation lists and soliciting them whenever they are potential sources.
(a) Maintain and update a listing of qualified MBE/WBEs that can be solicited for construction, equipment, services and/or supplies.
(b) Provide listings to all interested parties who request copies of the bidding or proposing documents.(c) Contact appropriate sources within your geographic area and State to identify qualified MBE/WBE for placement on your MBE/WBE business listings.
(d) Utilize other MBE/WBE listings such as those of the State=s Minority Business Office, the Small Business administration, Minority Business Development Agency (MBDA) of the Department of Commerce, EPA OSDBU, and DOT.
(e) have State environment agency personnel review solicitation lists.(2) Make information of forthcoming opportunities available to MBE/WBEs and arrange time for contracts and establish delivery schedules, where requirements permit, in a way that encourages and facilitates participation by DBEs in the competitive process. This includes, whenever possible, posting solicitations for bids or proposals for a minimum of 30 calendar days before the bid or proposal closing date.
(a) Develop realistic delivery schedules which may provide for greater MBE/WBE participation.
(b) Advertise through the minority media in order to facilitate MBE/WBE utilization. Such advertisements may include, but are not limited to, contracting and subcontracting opportunities, hiring and employment, or any other matter related to the project.(c) Advertise in general circulation publications, trade publications, State agency publications and minority and women=s business focused media concerning contracting opportunities on your projects. Maintain a list of minority and/or women=s business-focused publications that may be utilized to solicit MBE/WBEs.
(3) Consider in the contracting process whether firms competing for large contracts could subcontract with MBE/WBEs. For Indian Tribal, State and local Government recipients, this will include dividing total requirements when economically feasible into smaller tasks or quantities in order to increase opportunities for participation by MBE/WBEs in the competitive process.
(a) Perform an analysis to identify portions of work that can be divided and performed by qualified MBE/WBEs.
(b) Scrutinize the elements of the total project to develop economical units of work that are within the bonding range of MBE/WBEs.(c) Conduct meetings, conferences, and follow-ups with MBE/WBE associations and minority media to inform these groups of opportunities to provide construction, equipment, services ad supplies.
(4) Encourage contracting with a consortium of MBE/WBEs when a contract is too large for one of these firms to handle individually.
(a) Notify MBE/WBEs of future procurement opportunities so they may establish bidding solicitations and procurement plans.
(b) Provide MBE/WBE trade organizations with succinct summaries of solicitations.
(c) Provide interested MBE/WBEs with adequate information about plans, specifications, timing and other requirements of the proposed projects.(5) Use the services and assistance of the SBA and the MBDA.
(a) Use the services of outreach programs sponsored by the MBDA and/or the SBA to recruit bona fide firms for placement on DBE bidders lists to assist these firms in the development of bid packaging.
(b) Seek out Minority Business Development Centers (MBDCs) to assist recipients and prime contractors in identifying MBE/WBEs for potential work opportunities on projects
(6) If the prime contractor awards subcontracts, require the prime contractor to take the steps in subparagraphs (1)-(5) of this section.
Documentation/Reporting
Recipients are required to maintain the records documenting compliance with requirements including documentation of its and its prime contractor=s good faith efforts and data relied upon in formulating its fair share objectives.
In addition, a recipient of a Continuing Environmental Program Grant (e.g., a State) or other annual grant would be required to create and maintain a bidders list. Such a list must only by kept until the grant project period has expired and the recipient is no longer receiving EPA funding under the grant.All recipients of continuing environmental program grants, institutions of higher education, hospitals and other non-profit organizations are required to report to EPA within 30 days following the end of each Federal fiscal year except for State and local government recipients who will report on an annual basis.
EPA requires that a recipient report the total amount of financial assistance spent on procurement and the amount awarded to an MBE or WBE on EPA Form 5700- 52A.