Policy 6.143

Diversity and Equitable Utilization in Business

1. Factual Predicate and Purpose

1. In September 1993, the School Board of Palm Beach County hired MGT of America, a Tallahassee consulting firm, to conduct a disparity study to analyze utilization of minority- and women-owned business enterprises (M/WBEs) in School District procurement. The disparity study was accepted by the School Board on April 5, 1995.

2. The study was designed to address four major issues: Whether there is a disparity in the utilization of M/WBEs in the District's procurement program; whether any such disparity is the product or result of past discrimination or other factors related to race- or gender-based discrimination; whether such disparity could be effectively ameliorated through race- and gender-neutral programs; and if the appropriate remedy was a race- or gender-conscious program, how the program should be narrowly tailored to remedy the current effects of past discrimination and conform to constitutional guidelines.

3. The 1995 study concluded that market area industry practices in construction, construction support services, professional services, and commodities and services were discriminatory toward M/WBEs and that the School District had been a passive participant in discrimination against M/WBEs.

4. Since 1995, the School District has employed several race- and gender-neutral methods in an effort to eliminate disparities in the utilization of M/WBE firms, such as: bond waivers, contract de-bundling, contractual prohibitions against discrimination, advertisements in minority media; outreach activities by the District; and agency networking and trade fair activities.

5. Incorporating recommendations in the disparity study report, the Department of Equity Assurance prepared Policy 6.146A and Procedures Manual 6.146B, approved by the School Board in February 1996 with a Sunset date of September 30, 2005. These policies were later amended to sunset on June 6, 2001.

6. On August 6, 2001, the School Board adopted Policy 6.142, directing "the Superintendent to compile and analyze additional data as may be necessary to develop appropriate programs and procedures" in furtherance of and equitable participation by minority-and-women-owned business enterprises (M/WBEs), and "that the Superintendent will bring back a policy that actively promotes diversity and business practices that sets goals for M/WBE participation that are consistent with the calculated disparity above."

7. The administration in the Office of Equity Assurance transitioned to a focus on M/WBE participation, and the Board established the Office of Diversity in Business Practices (ODBP) in August of 2001 to monitor all contracts, bids, and professional services and promote the increased use of M/WBEs in the District's procurement process.

8. On December 12, 2001, Washington & Rice, LLC, was hired to conduct a comprehensive review of the District's M/WBE program and procurement practices, customize and install the CHAMP software, a comprehensive database and tracking system for use by the ODBP.

9. In June 2004, the School District commissioned D. J. Miller & Associates, Inc. (DJMA) to conduct a Causation and Anecdotal Study (DJMA Study) to examine School District procurement practices, to examine the existence of any disparities in market outcomes in the utilization of ready, willing, and able minority- and women-owned businesses on District contracts, to determine possible causes for any such disparities and whether there is an compelling government interest to utilize race/gender-conscious means to remedy ongoing effects of marketplace discrimination upon the School Districts contracting. Additionally, the DJMA Study sought to recommend narrowly tailored remedies to any identified barriers to equitable participation of minority- and women-owned businesses (M/WBEs) in School District contracts that are consistent with applicable law. Based largely upon its review of the DJMA Study results and previously gathered evidence, the School Board has made the following significant findings:

1. Within the relevant geographic market (consisting of the Palm Beach County, Ft. Lauderdale, and Miami-Dade County, FL MSAs), there are statistically significant disparities in the utilization of ready, willing, and able minority- and women-owned business in the following categories of contracts and business owners:

1. Construction (African American owned firms)

2. Non-professional Services (Hispanic American owned firms)

3. Professional Services (African American, Hispanic American, Native American, and Women owned firms)

4. General Procurement (Asian American and Native American owned firms)

2. These significant disparities establish an inference of discrimination that is adversely affecting the Palm Beach County School District's utilization of ready, willing, and able minority- and women-owned firms.

3. These inferences of discrimination were further supported by other strong and compelling evidence for the relevant time period including, but not limited to, the following examples:

1. White male-owned firms received the overwhelming majority of the County's construction building permits in the public sector for prime contracts (98.54%) and for subcontracts (94.81%).

2. White male-owned firms received an even larger overwhelming majority of the County's construction building permits for private sector prime contracts (99.41%) and subcontracts (97.75%). This significant private sector disparity in the relevant market was further confirmed by findings derived from Reed Construction data that reflect M/WBEs received only 6.81% of public sector construction dollars, and 5.17% of the private sector construction dollars.

3. Interviews with District purchasing staff and M/WBE firms identified a number of discriminatory barriers affecting the relevant market including unequal access to bonding, finance, and insurance; unfair denials of opportunities to bid; unfair denial of contract awards; "good old boy" networks; double standards in performance; jobsite harassment; and false reporting of M/WBE contract participation to avoid utilization of legitimate M/WBE firms.

4. The implementation of a broad array of race- and gender-neutral assistance efforts and programs throughout the relevant market over the past decade have been unsuccessful in eliminating these persistent and significant disparities in the District's utilization of ready, willing, and able M/WBE firms. (See DJMA Study, pp. VII-1 to VII-20). These race- and gender-neutral efforts have included small business programs, technical assistance, loan guarantee assistance, bonding assistance, business development assistance, financing assistance, matchmaking sessions, and mentor-protégé programs.

5. Based upon comparisons of the ranking of bids obtained through an analysis of Reed Elsevier Construction Data, M/WBE contractors are as competitive as their white male counterparts. However, the M/WBE bidding rate is nearly three times as great in the public sector as it is in the private sector, and M/WBEs receive a significantly lower percentage of contract dollars in the private sector. (See DJMA Study pp. VIII-22 to VIII-33). Yet, a significant disparity in the utilization of African American construction firms by the School District persists.

10. Based upon the totality of the evidence gathered and presented to the Board since 1995, the Board has concluded that there is a strong basis in evidence establishing that the School District has a compelling interest to remedy the ongoing effects of discrimination that is occurring in the broader relevant market and adversely affecting the District's utilization of ready, willing, and able minority- and women-owned firms in District contracts. The Board has further concluded that it needs to take action to avoid becoming a passive participant in private sector discrimination.

11. The Board has further concluded that race- and gender-neutral remedies, in and of themselves, are likely to be insufficient to eliminate the effects of the identified forms of discrimination, and that a narrowly tailored combination of race- and gender-neutral and race- and gender-conscious remedies is warranted.

2. Policy Direction

1. The School District shall resort to the use of race- and gender-conscious means for addressing disparities only when it is apparent that the use of neutral means alone will likely be insufficient to remedy the effects of identified discrimination.

2. Having found that it has a compelling governmental interest to remedy the effects of identified discrimination in District procurement and contracting, the School Board directs the Superintendent to establish procedures to implement remedies that are consistent with this Policy and that are narrowly tailored to the findings and conclusions of the DJMA Study

3. It is the policy of the Board to take all necessary, reasonable, and legal action to prevent discrimination and to ensure that all businesses, including M/WBEs, are afforded the maximum equitable opportunity to participate in the District's purchasing process.

4. This Policy shall apply to the solicitation of all goods, services, and construction contracts procured in accordance with the Palm Beach County School Board policies, Florida Statutes, and Department of Education (DOE) rules. The District's procurement processes shall promote diversity and equitable utilization of M/WBEs; and such solicitation processes shall be used, whenever possible, even for those goods and services which are exempt from competitive procurement under State Board of Education Rule 6A-1.012.

5. The Superintendent shall take all necessary and reasonable steps permissible by law to ensure full equitable participation by M/WBEs in the procurement of goods and services for the District school system. As a minimum, those steps shall include:

1. developing programs and procedures as described herein that will achieve the School Board's diversity objectives in business practices in a manner that is consistent with this Policy;

2. establishing a commercial non-discrimination policy that ensures that companies doing business with the School Board do not discriminate in the solicitation, selection, or treatment of subcontractors, suppliers, vendors, or commercial customers on the basis of race, color, sex or national origin;

3. ensuring that the ODBP is included on all selection committees for bids, contracts and professional services. The ODBP shall review contract specifications to ensure that they are not unnecessarily restrictive to the availability and the participation of Small Business Enterprises (SBEs) and M/WBE firms in the procurement and contracting process;

4. establishing an evaluation system whereby all School District employees who are responsible for the procurement of goods and services are knowledgeable about the District's goals in achieving diversity and evaluated on their job performance regarding implementation of this Policy;

5. ensuring that all senior-level staff performance evaluations include an indicator for SBE and M/WBE diversity objectives for procurement; and

6. evaluating the levels of availability and utilization in SBE and M/WBE participation through the establishment and use of a centralized bidder registration system, and adjusting the implementation of policy accordingly to account for changing needs and circumstances and to ensure that appropriate utilization objectives are established and achieved.

3. Definitions.-- As used in this Policy, the terms below have the following meanings:

1. Agency.-- The School Board of Palm Beach County.

2. Availability.-- The percentage of ready, willing and able business firms that are minority- and/or women-owned and seek to provide goods and services to the School District.

3. Award Amount.-- The award amount is the dollar value of the contract when awarded.

4. Board.- The School Board of Palm Beach County, which is the legal entity with authority to enter contracts on behalf of the District school system under Fla. Stat. § 1001.41(4).

5. Business.-- Any for-profit corporation, partnership, sole proprietorship, joint stock company, joint venture, or any other private legal entity.

6. Certification.-- The process by which the ODBP determines that a business meets the criteria for classification as a small, minority, or woman business enterprise.

7. Centralized Bidder Registration System.-- A computer-based management information system designed to manage the contract compliance process. It is a software solution designed to develop and monitor narrowly tailored M/WBE programs by integrating with existing School District financial and contract systems for the purpose of tracking all aspects of the contract sequence process: vendor information, contract information, solicitation/award information, invoice, and payment information.

8. Construction.-- The process, usually requiring the professional services of an architect and/or engineer, of building, altering, repairing, improving, or demolishing any structure or building, or other improvements of any kind to any real property as determined by the Director of Purchasing.

9. Contract.-- (1) A written agreement between two or more competent parties to perform or not perform a specific act or acts; and (2) any type of agreement regardless of what it is called for the procurement or disposal of supplies, services, or construction.

10. Contractor.-- A separate and distinguishable business entity participating or seeking to participate in the performance of a contract.

11. Controlled.-- For the purpose of determining whether a business is a minority or women business enterprise, "controlled by" shall mean that the minority/ies, the woman, or combination of minorities and women, as the context requires, shall (1) possess legal authority and power to manage business assets, good will and daily operations of the business; and (2) actively and continuously exercise such authority and power in determining the policies and directing the operations of the business, knowledge and technical expertise in the business endeavor, licensed to perform the business or trade, and the lack of external influence over the day-to-day operations or decision-making process by any entity (with the exception of franchise operations).

12. Compliance.-- The level of performance at which the School District and the Prime Contractor utilizes vendors in meeting diversity objectives.

13. Discriminate.-- To treat an individual or group differently solely on the basis of race, religion, color, sex, national origin, age, handicap, ancestry or disabled veteran status.

14. Debarment.-- The exclusion of a vendor or contractor, for cause, from bidding and/or doing business with the School Board.

15. District.-- The School District of Palm Beach County, its individual and collective departments, managers, staff and facilities.

16. Disability.-- A physical or mental impairment that substantially limits one or more of an individual's major life activities.

17. DOE.-- Department of Education, an executive-branch department of the State of Florida, which is tasked with recommending education-related policy to the Governor, State Board of Education, and state Legislature, and oversees local school districts' adherence to state requirements.

18. DOE or State Board of Education Rules.-- Legislatively-mandated policies as established by the Department of Education or State Board of Education for governmental and operational facilities for personnel and administration, including State Board of Education Rule 6A-1.012, "Purchasing Policies."

19. Front.-- A business which purports to be a M/WBE for purposes of obtaining District contracts, but which is actually owned, controlled, and/or operated in a manner that is inconsistent with the performance of a commercially useful function and that does not comply with the District's requirements for M/WBE certification.

20. Goals (Annual Diversity Goals).-- A percentage of total contract dollar volume, on an annual basis, for the participation of minority and women-owned businesses in the District's procurement, professional services and construction contracts.

21. Industry Categories.-- Construction, professional services, non-professional services, commodity procurement, manufacturing, wholesale, and retail,

22. Joint Venture.-- An association of two or more persons or businesses to carry out a single business enterprise for profit for which purpose they combine their property, capital, efforts, skills and knowledge. Joint ventures must be established by written agreement.

23. Minority.- a "minority" or "minority person" means a lawful, permanent resident of Florida who is:

1. an "African American," a person having origins in any of the racial groups of the African Diaspora;

2. a "Hispanic American," a person of Spanish or Portuguese culture with origins in Mexico, Central or South America, or the Caribbean, regardless of race;

3. an "Asian American," a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands, including the Hawaiian Islands prior to 1778;

4. a "Native American," a person who is a member of or is eligible to be a member of a federally recognized Indian tribe. A "federally recognized Indian tribe" means an Indian tribe, band, nation, rancheria, pueblo, colony, or other organized group or community, including any Alaska native village, which recognized by the Secretary of the Interior on October 1, 1985, as having special rights and is recognized as eligible for the services provided by the United States to Indians because of their status as Indians, and any tribe that has a pending application for federal recognition on October 1, 1985, as having special rights and is recognized as eligible for the services provided by the United Sates to Indians because of their status as Indians, and any tribe that has a pending application for federal recognition on October 1, 1985; or

5. an American woman.

24. M/WBE.-- A minority-owned business enterprise or a women-owned business enterprise or a designated combination of minority- and woman-owned business enterprise in a specified industry that:

1. employs 200 or fewer permanent full-time employees and that, together with its affiliates, has a net worth of not more than five million dollars ($5 million) or any firm based in this state which has a Small Business Administration 8(a) certification (and as applicable to sole proprietorships, the $5 million net worth requirement shall include both personal and business investments); and

2. has at least 51% minority ownership, daily management, and control of the business; and

3. is domiciled in the Palm Beach County, Miami-Dade County, or Ft. Lauderdale metropolitan statistical areas (MSA), or is domiciled in the State of Florida and can demonstrate that it routinely bids on and/or performs contracts in Palm Beach County; and

4. is lawfully organized to engage in commercial transactions.

However, ownership by a minority person does not include ownership resulting from a transfer from a non-minority person to a minority person within a related immediate family group if the combined total net asset value of all members of such family group exceeds one million dollars ($1 million). For purposes of this definition, the term "related immediate family group" means one or more children under sixteen (16) years of age and a parent of such children or the spouse of such parent residing in the same house or living unit. The Superintendent shall implement procedures for periodic re-certification and graduation of M/WBEs from M/WBE program eligibility.

25. NIGP (National Institute of Governmental Purchasing).-- Standards used to classify business enterprises by industry codes.

26. Owned.-- For the purposes of determining whether a business is a minority or woman business enterprise, shall mean that the minority/ies or woman(en), as the context requires, shall possess an ownership interest of a minimum of 51%.

27. Preferential Programs.-- The preference extended for diversity participation in the ranking of responsive bidders and the bid preference procedures under this Policy. It also means the maximum point allocation for professional service contract award evaluations.

54. Prime Contractor.-- Any person or business entity that has a contract with the School Board to provide specific construction services, sales, supplies, materials, professional services, labor and/or equipment.

81. Professional Services.-- Any narrow discipline wherein a known practitioner has through education and experience developed expert advisory and programming skills as a vocation; any service performed primarily by vocational personnel which requires the analysis or certification of a professional before the services are acceptable to the user of the service; or any other advisory study, or programming activity where the School District's Director of Purchasing determines that the level of skills and/or creativity of the potential or known practitioner(s) warrant utilizing a request for proposals, request for information, or similar solicitation process other than the competitive bid or quotation process.

108. Project Goals.-- Contract-specific goals expressed as percentages of the total contract dollar volume that are anticipated by the District for subcontract participation by Small Business Enterprise firms or M/WBE firms based upon relative availability in the relevant industry.

135. Proposal.-- An executed formal document submitted by an offeror to the purchasing agent stating the goods and/or services offered to satisfy the need as requested in the Request for Proposal or Request for Information.

162. Procurement.-- Buying, purchasing, renting, leasing or otherwise acquiring any goods and/or services for public purposes in accordance with the law, rules, regulations and procedures intended to provide for the economic expenditure of public funds. For the purpose of this Policy, procurement refers to those goods and/or services, except professional services, solicited by the Purchasing Department pursuant to Department of Education requirements and Policy 6.14.

189. Ready, Willing, and Able.-- Any vendor(s), who has registered an interest in doing business with the School District , and has the technical expertise, training, and licenses to perform in accordance to the contract document.

216. Relevant Market Place.-- The geographical area in which the majority of the School District's suppliers, vendors, and / or contractors are located.

243. Small Business Enterprise (SBE) - Any business firm that is certified by the District as having average annual gross sales and an average number of full-time employees over the last three years that are less than fifty percent (50%) of the small business size standards as most recently defined by the U. S. Small Business Administration for the business firm's relevant industry. In addition, to be eligible as an SBE for bidding purposes, a business firm must have received less than one million dollars ($1 million) in contract payments from District projects or contracts in the fiscal year preceding the bid, The Superintendent shall establish procedures for periodic re-certification and graduation of SBE firms from SBE program eligibility.

270. Subcontractor.-- Any person providing goods and/or services to a prime contractor for profit, if such goods and/or services are procured or used in fulfillment of the prime contractor's obligations arising from a contract with the School District of Palm Beach County.

297. Diversity Directory.-- A compilation of certified SBEs and M/WBEs, which is retained and published by the ODBP and made available to contractor(s) or vendor(s) for use in identifying subcontractors, material suppliers, etc.

324. Underutilization.-- A level of contract participation by a group of businesses (e.g., M/WBEs) that is at least two standard deviations below their relative availability in a given an industry code.

351. WBE.-- Woman-owned, controlled, and operated business enterprises (which have at least 51% female ownership, management, and control of the business).

378. Goals.-- The annual or contract-specific goals for contract participation that express the anticipated level or proportion of contract dollars in a given time frame that would be expected to be received by a particular segment of the total population of Ready, Willing, and Able (RWA) firms. RWA firms are defined as those firms that are ready and able to sell goods or services that the School District buys, and that have registered their interest in doing business with the School District. Such goals are based upon availability analysis derived from a database established through the implementation of a mandatory and automated centralized bidder registration system. Upon completion of availability analysis, such goals for contract participation may, under certain circumstances, be set and narrowly tailored by race, gender, and industry codes. Annual goals are intended as an administrative guide only to assist the District in its annual policy review to determine whether the use of more aggressive or less aggressive remedies are warranted in the future. Annual goals shall not be routinely applied to specific contracts absent independent availability analysis that demonstrates they are appropriate for application to a specific contract.

4. Procurement Process.-- The Board hereby directs the Superintendent to implement the following race- and gender-neutral measures and procurement procedures to provide fairer access to District contracts:

1. Establishment of a Procurement Policy Work Group to examine and propose modifications to the District's procurement processes and practices, including a thorough review of policies and practices affecting small dollar purchases, the use of blanket purchase orders, contract-bundling, the merits of centralized vs. de-centralized purchasing and its effects on M/WBE utilization, the uniformity (or lack thereof) in the standards applied in the development of contract specifications, the utilization of construction managers at risk, and any other policies and practices that may adversely affect the utilization of small, minority, and women-owned firms on District contracts.

2. Establishment of a Commercial Non-Discrimination Policy, to be proposed for Board approval, which provides: (a)  a clear policy statement against discrimination in business on the basis of race, gender, religion, national origin, ethnicity, age, or disability; (b)  a prohibition against the District entering into contractswith business firms that discriminate in the solicitation, selection, or treatment of vendors, suppliers, subcontractors, or commercial customers; (c) a formal complaint process and investigation process for alleged violations of this policy; and (d)  due process for hearing evidence, rendering findings, and imposing sanctions against business firms and District employees that violate this Policy, in coordination with any applicable collective bargaining procedures.

3. Establishment of an automated and mandatory Centralized Bidder Registration system for all firms that are interested in selling goods or services to the District. This Centralized Bidder Registration system should be a computer-based management information system designed to manage the contract compliance process. It should enable targeted e-mail solicitation of prospective bidders of relevant bid opportunities. The Centralized Bidder Registration system should also facilitate the collection of data that is necessary for the development and monitoring of narrowly tailored SBE and M/WBE programs. In doing so, it should also interface with existing School District financial and contract systems for the purpose of tracking all aspects of the contract sequence process: vendor information, contract information, solicitation/award information, invoice, and payment information. All bidders, regardless of ownership type, shall be required to register on this system prior to submitting a bid, receiving a contract award, or submitting an invoice for payment to the School District.

4. Establishment of business development assistance initiatives such as the use of bond waivers for contracts up to $200,000 in value; prohibition against prime contractors' requirements for bonds from subcontractors on District contracts; wrap-up insurance plans; financial assistance programs for SBEs (e.g., loan initiatives, revolving working capital fund, contract financing, and public venture capital funds); mentor-protégé programs; and a one-stop referral system for firms in need of technical assistance resources.

5. Establishment of a procedure for bid de-briefing for losing bidders on District contracts.

6. Establishment of a linked deposit program to encourage financial institutions that hold District funds to improve capital access and loan availability for SBEs and M/WBEs.

7. Establishment of a procedure for ODBP to preview proposed contract bids in advance of their public dissemination to suggest ways in which contracts may be de-bundled or segmented into smaller segments to provide for greater competition and opportunities for greater prime contract participation by SBE and M/WBE firms.

8. Establishment of a Prompt Payment Policy that requires that every contract let by the School Board for the performance of work shall contain a provision requiring the prime contractor to certify in writing with the submission of its invoices to the District that all subcontractors, subconsultants, and suppliers have been paid for satisfactorily delivered work and materials from previous progress payments received, less any retainage, by the prime contractor. During the term of the contract and upon the completion of the contract, the District shall request documentation to certify payment to subcontractors, subconsultants, or suppliers. Failure to comply with this policy or to provide this required documentation shall constitute a material breach of contract. Such failure shall also preclude the prime contractor from further receipt of progress payments from the District until such delinquent payments to subcontractors, subconsultants, and suppliers are made. This provision in no way creates any contractual relationship between any subcontractor, subconsultant, or supplier and the District or any liability on the District for the contractor's failure to make timely payment to the subcontractor, subconsultant, or supplier.

5. Industry Specific Remedial Programs.- The Board hereby directs the Superintendent to develop and implement remedial programs for the purpose of eliminating the disparities in M/WBE contract participation in District contracts caused by discrimination. The following array of industry-specific programs are to be established and implemented in a narrowly tailored manner consistent with the factual predicate and consistent with the terms of this Policy:

1. Construction Programs

1. A Small Business Enterprise Program permitting the use of set asides of small prime contracts that are below competitive bidding dollar thresholds for bidding exclusively among certified SBE firms, and also establishing mandatory subcontracting goals for the participation of certified SBE subcontractors on those construction contracts that are above the competitive bidding threshold and that have commercially useful subcontract opportunities.

2. An Internal Matchmaking Program for SBE and M/WBE construction contractors wherein the Program Management Department shall review bids for viable opportunities for SBE and M/WBE participation and then inform SBE and M/WBE firms of those specific opportunities that they are likely to be interested in. The District shall establish mechanisms to ensure timely notification of SBEs and M/WBEs of such opportunities and shall also establish an open door policy to permit SBE and M/WBEs to dialogue with and market themselves directly to appropriate District construction personnel.

3. An External Matchmaking Program for SBE and M/WBE construction contractors wherein ODBP shall sponsor matchmaking sessions between prime contractors and SBE and M/WBE subcontractors to occur simultaneously with public release of contract forecasts to provide the maximum opportunity for SBE and M/WBE collaboration with non-minority firms. The Program Management Department and its construction managers should be actively involved in the process.

4. A Minority Business Enterprise Program establishing bid preferences on certain construction contracts on behalf of certified M/WBE African American-owned construction firms including the use of contract-specific subcontracting goals on selected contracts with genuine opportunities for commercially useful subcontracting as described herein under Section 8 of this Policy.

2. Non-professional Services Programs

1. A Small Business Enterprise Program permitting the use of set asides of small prime contracts that are below competitive bidding dollar thresholds for bidding exclusively among certified SBE firms, and also establishing mandatory subcontracting goals for the participation of certified SBE subcontractors on those non-professional services contracts that are above the competitive bidding threshold and that have commercially useful subcontract opportunities.

2. An Internal Matchmaking Program for SBE and M/WBE non-professional services firms wherein the Purchasing Department shall review bids for viable opportunities for SBE and M/WBE participation and then inform SBE and M/WBE firms of those specific opportunities that they are likely to be interested in. The District shall establish mechanisms to ensure timely notification of SBEs and M/WBEs of such opportunities and shall also establish an open door policy to permit SBE and M/WBEs to dialogue with and market themselves directly to appropriate District procurement personnel.

3. An External Matchmaking Program for SBE and M/WBE non-professional services firms wherein the ODBP shall sponsor matchmaking sessions between prime contractors and SBE and M/WBE subcontractors and joint venture partners to occur simultaneously with public release of contract forecasts to provide the maximum opportunity for SBE and M/WBE collaboration with non-minority firms. The Purchasing Department purchasing agents and managers should be actively involved in the process.

4. A Minority / Women Business Enterprise Program permitting the use of set asides of small prime contracts that are below competitive bidding dollar thresholds for bidding exclusively among certified M/WBE firms that are owned by Hispanic Americans, and also establishing contract-specific subcontracting goals for the participation of certified M/WBE subcontractors on those non-professional services contracts that are above the competitive bidding threshold and that have commercially useful subcontract opportunities.

3. Professional Services Programs

1. A Small Business Enterprise Program to establish bid preferences, joint venture incentives, and evaluation preferences on behalf of certified SBE firms as described hereunder in Section 8 of this Policy.

2. An Internal Matchmaking Program for SBE and M/WBE professional services firms wherein the Program Management Department and the Purchasing Department shall review bids for viable opportunities for SBE and M/WBE participation and then inform SBE and M/WBE firms of those specific opportunities that they are likely to be interested in. The District shall establish mechanisms to ensure timely notification of SBEs and M/WBEs of such opportunities and shall also establish an open door policy to permit SBE and M/WBEs to dialogue with and market themselves directly to appropriate District engineering, architectural design, and procurement personnel.

3. An External Matchmaking Program for SBE and M/WBE professional services firms wherein the ODBP shall sponsor matchmaking sessions between prime contractors and SBE and M/WBE subcontractors and joint venture partners to occur simultaneously with public release of contract forecasts to provide the maximum opportunity for SBE and M/WBE collaboration with non-minority firms. The Purchasing Department purchasing agents and managers should be actively involved in the process.

4. A Minority / Women Business Enterprise Program permitting the use of bid preferences, joint venture incentives, and evaluation preferences among certified M/WBE firms that are owned by African Americans, Hispanic Americans, Native Americans, and Women and also establishing contract-specific subcontracting goals for the participation of certified M/WBE subcontractors on those professional services contracts that are above the competitive bidding threshold and that have commercially useful subcontract opportunities.

4. General Procurement Programs

1. A Small Business Enterprise Program permitting the use of set asides of small prime contracts that are below the competitive bidding dollar thresholds for bidding exclusively among certified SBE firms, and also establishing mandatory subcontracting goals for the participation of certified SBE subcontractors on those general procurement contracts that are above the competitive bidding threshold and that have commercially useful subcontract opportunities as described hereunder in Section 8 of this Policy.

2. An Internal Matchmaking Program for SBE and M/WBE general procurement firms wherein the Purchasing Department shall review bids for viable opportunities for SBE and M/WBE participation and then inform SBE and M/WBE firms of those specific opportunities that they are likely to be interested in. The District shall establish mechanisms to ensure timely notification of SBEs and M/WBEs of such opportunities and shall also establish an open door policy to permit SBE and M/WBEs to dialogue with and market themselves directly to appropriate District procurement personnel.

3. An External Matchmaking Program for SBE and M/WBE general procurement firms wherein the ODBP shall sponsor matchmaking sessions between prime contractors and SBE and M/WBE subcontractors and joint venture partners to occur simultaneously with public release of contract forecasts to provide the maximum opportunity for SBE and M/WBE collaboration with non-minority firms. The Purchasing Department purchasing agents and managers should be actively involved in the process.

4. A Minority / Women Business Enterprise Program permitting the use of set asides of small prime contracts that are below competitive bidding dollar thresholds for bidding exclusively among certified M/WBE firms that are owned by Asian Americans and Native Americans, and also establishing contract-specific subcontracting goals for the participation of certified M/WBE subcontractors on those general procurement contracts that are above the competitive bidding threshold and that have commercially useful subcontract opportunities.

6. Administration.- The Board hereby directs the Superintendent to adopt procedures to ensure that the ODBP will periodically conduct the following kinds of analyses using data captured by an automated mandatory centralized bidder registration system as described in this policy:.

1. Availability Analysis

1. Overall Availability.-- The measure of overall availability is based on all the vendors and contractors that register in the automated and mandatory centralized bidder registration system. Such availability measurements shall be segmented according to the proportion of business ownership by race, gender, and size within certain NIGP or North American Industrial Classification System (NAICS) or comparable industry codes.

2. SBE Availability.- The proportion of overall availability of the ready, willing, and able (RWA) vendors that are certified as Small Business Enterprise (SBE) firms within the SBE program, categorized by industry codes and relevant markets..

3. M/WBE Availability.-- The proportion of overall availability of the ready, willing, and able (RWA) vendors that are certified within the M/WBE program, categorized by race, gender, industry codes, and relevant market.

4. Race-Neutral SBE Contract Goals.-- Availability analysis shall be used to set contract participation goals on an annual basis and on a contract-specific basis.. The contract participation goals shall be set based on the relevant measures of SBE availability as compared to all RWA vendors within the specific industry code of the contract in the relevant market.

5. M/WBE Contract Goals.- Availability analysis shall be used whenever setting contract participation goals on an annual basis or on a contract-specific basis. The contract participation goals shall be set based on the relevant measures of M/WBE availability as compared to all RWA vendors within the specific industry code of the contract in the relevant market. In setting such goals, the Superintendent shall consider adoption of procedures based upon DJMA's recommendations for Algorithm Target Methodology (ATM) or Benchmarking (see pages IX-20 through IX-24 of the DJMA Study).

2. Utilization Analysis.-- The utilization analysis shall be based on the total dollar amount paid in a given period, such as a year, to the vendors and contractors that were registered in the automated and mandatory centralized bidder registration system This analysis reflects the proportion of contract dollars that are spent, by industry code, and within SBE or M/WBE vendor categories, as compared to the total contract dollars spent with the overall vendor population within those industries.

3. Disparity Analysis

1. This disparity analysis shall be based on the 80% statistical significance rule adopted under Croson v. Richmond, which is defined as two standard deviations between utilization and availability. Utilization of RWA M/WBE firms that is 80% or less of the level of availability of M/WBE firms in a particular market is considered statistically significant under-utilization. Utilization of that is above 100% of the level of availability is considered over-utilization.

2. Statistically significant underutilization creates an inference of discrimination, and in combination with other factors, permits consideration of the use of narrowly tailored race- and gender-conscious remedies to ameliorate the effects of such discrimination.

4. Remedy Analysis

1. If disparity is shown in the disparity analysis above, the District shall review the findings and recommendations from the DJMA Study (or from the District's most recent independent disparity study) to determine the most appropriate and effective remedies to apply to a given set of contracts to eliminate barriers and overcome the effects of various forms of discrimination identified through the DJMA Study or any subsequent studies.

2. In selecting a remedial approach for any given contract, the District shall seek to identify the remedy that is most likely to be effective in promoting fair and equitable contract participation by all segments of the relevant vendor population, yet does not impose any undue burden on innocent third parties.

5. Periodic Review of Factual Predicate

1. At least once every four years, the ODBP shall contract with an independent disparity study consultant to conduct an updated review of the factual predicate for the District's M/WBE programs, and to determine whether there is any ongoing need for the use of race- and gender- conscious remedies.

2. Each successive disparity study update shall use methodologies and data sources that are preferred or consistent with the most recent controlling legal precedents.

3. Each successive disparity study update shall make specific findings and recommendations regarding the ongoing need for race- and gender- neutral and race- and gender-conscious remedies for certain categories of contracts. Study recommendations should also suggest appropriate modifications to existing District procurement procedures, SBE programs, and M/WBE programs to promote fair and equitable participation in School District contracting opportunities in the most effective (yet least restrictive and least burdensome) manner.

4. In the event that the District determines that there is no ongoing need for any race- and gender-conscious remedies, the M/WBE programs shall be gradually phased out and shall sunset within two years after such determination is made.

7. Goal Setting Committee.-- The goals mentioned in Section 6 will be established by a Goal Setting Committee under the auspices of ODBP, and shall be composed of professional and senior-level representation from the following departments:

1. Department of Purchasing;

2. Diversity in Business Practices;

3. Chief Operating Officer;

4. Superintendent's Designee; and

5. The Department responsible for letting the contract.

8. Remedial Options to Encourage Fair and Equitable Contract Participation

1. Bid Preferences.--  Specific goals for each project or contract may be adopted on a project-by-project, or contract-by-contract basis, wherein the contract award shall be made to the lowest responsive, responsible bidder meeting the SBE or M/WBE subcontracting goals for the contract/project, when that bidder's price does not exceed the lowest bidder's price by an amount greater than the dollar or percentage amount set by the Goal Setting Committee

2. Professional Services Evaluation Preferences

1. In the selection process for the award of certain professional services contracts, the District may include as one of its evaluation criteria the level of SBE or M/WBE participation on the team or in subcontract participation. Under this remedial approach, the maximum number of evaluation points is available to an SBE or M/WBE proposer.

2. A summary of any applicable SBE or M/WBE Program procedures shall be plainly stated in each solicitation. For competitive professional services contracts, a point system of evaluation will be used by an evaluation committee to determine the recipient of the contract award recommendation. Businesses submitting proposals to provide professional services to the District will be eligible to receive, on a sliding scale, a designated number of the total possible points based upon their SBE or M/WBE participation. The distribution of points allocated to the evaluation criteria shall be stated in the request for proposal. SBE or M/WBE participation shall be but one of several criteria used to evaluate each proposal. Maximum points shall be awarded when the proposer is a certified SBE or M/WBE. The provisions within this section pertaining to the procurement of professional services are not intended to be used to the exclusion of other provisions of this policy.

3. Internal Matchmaking.-- ODBP, in conjunction with the Purchasing Department and the Program Management Department, shall review bids for viable opportunities for M/WBE participation and then inform M/WBEs of those specific opportunities that they are likely to be interested in. The District shall establish mechanisms to ensure timely notification of M/WBEs of such opportunities and shall also establish an open door policy to permit M/WBEs to dialogue with and market themselves directly to appropriate District procurement personnel.

4. External Matchmaking.-- ODBP shall facilitate non-M/WBE firms and M/WBEs coming together on specific School District projects where opportunities are available for cooperative efforts. Such matchmaking sessions should occur simultaneously with public release of contract forecasts to provide the maximum opportunity for M/WBE collaboration with non-minority firms. On construction projects, the Program Management Department and its construction managers should be actively involved in the process.

9. Contract Solicitation and Award

1. ODBP Review.-- The ODBP shall preview all solicitations for construction, procurement, and professional services prior to public dissemination, for compliance with the objectives stated in this policy, and to ensure that bid specifications do not unnecessarily restrict the ability of SBE and M/WBE firms to compete and bid. All District award recommendations shall bear the review signature of the Director of the ODBP.

2. Disqualification/Rejection.-- The School District and School Board reserve the right to reject any proposals from bidders who have previously failed to perform properly and who have done so by commission or omission of an act of such serious and compelling nature that the act indicates a serious lack of business integrity or honesty.

3. Contract Compliance Requirements.-- As the Superintendent's designee, the ODBP will establish procedures for monitoring and evaluating program performance and compliance.

4. The School District and School Board reserve the right to reject any proposal deemed non-responsive for failing to meet the Diversity requirements.

5. A firm's failure to comply with the contract may result in the drafting of a recommendation for suspension or debarment of the firms or individuals involved. Suspension or debarment of vendors by the School Board for activity contrary to this program will be carried out in accordance with Policy 6.14.

10. Waivers

1. Pre-Award Waiver.-- At any time prior to the award of a contract for a purchase of goods and supplies, the Superintendent or designee may grant a partial or complete waiver of diversity requirements for reasons such as: cases of emergency procurement; situations where a non-M/WBE is the sole source of the needed goods or services and there are no apparent commercially useful functions available to be performed by Ready, Willing, and Able SBE or M/WBE subcontractors; or good faith efforts to meet the contract diversity goal have proven unsuccessful. The Department making an emergency procurement shall consider the availability of SBE or M/WBEs from which to make such purchases. The Director of Purchasing shall make available a report of procurement activities, including at a minimum project name, project number, project description, awarded vendor, advertisement date, waivers of diversity requirements (and reasons for the waiver), and estimated dollar value to include change orders.

2. Performance and Payment Bonds.-- The Director of Purchasing and the Director of the ODBP, as the Superintendent's designees, in accordance with provisions of Fla. Stat. § 255.05 shall have the authority to waive the requirements for performance and payment bonds for projects having a dollar value to $200,000 or less. The determination of this exemption shall be made on a contract-by-contract or project-by-project basis. In the event such exemption is granted, the Board or the District and its officers or officials shall not be personally liable to persons suffering loss because of granting such exemption.

11. Program Administration.-- The Superintendent of Schools has the overall responsibility for establishing procedures and administering the Diversity Program. The ODBP shall report directly to the Chief Operating Officer. The ODBP shall be responsible for developing, managing, and implementing the Diversity program on a day-to-day basis.

12. District Implementation.-- The School District shall take all necessary steps permissible under law to ensure that M/WBEs are afforded the maximum equitable opportunity to participate in the District's procurement processes. The ODBP will utilize internal and external monitoring and reporting as the methods of evaluation.

13. Reporting.-- The ODBP will provide the following reports:

1. Reports and recommendations to the Board on at least an annual basis regarding suggestions for policy changes consistent with these guidelines. This report shall be generated within 90 days subsequent to the Division of Financial Management's completing the fiscal close out of the School District records.

2. A program evaluation analysis will be submitted to the Board every four years to assess the success of diversity in the District's procurement process and whether disparity continues to exist in individual industry codes.

3. A disparity study update report prepared by an independent consultant, and as described in Section (6)(e) of this Policy, will be submitted to the Board every four years.

14. Graduation from the SBE and M/WBE Programs.-- Participation in the SBE or M/WBE program will be dependent upon the firm's need for the preferences extended under this Policy. Data should be maintained to determine which firms have overcome size barriers and barriers related to the effects of discrimination sufficiently to join the competitive mainstream in their respective industries. Firms that exceed the District's SBE and M/WBE size standards or which are otherwise graduated from the SBA or M/WBE programs shall remain eligible for certification, technical assistance, and other forms of assistance not related to bid preferences or evaluation preferences. Moreover, .the utilization of graduated M/WBE firms shall continue to be tracked and counted towards attainment of the District's Annual M/WBE participation goals. However, these firms may not participate in any of the race- or gender-conscious preferences of this Policy.

15. Implementation by the Superintendent.-- Wherever this Policy mentions procedures to be established or implemented by the Superintendent, certain internal operational procedures and guidelines may be set forth in Bulletins where appropriate. Other more formal procedures, when sufficiently developed and solidified, should be recommended to the Board, where appropriate, for adoption as Policy; thus, the District's M/WBE and SBE Procedures Manual, dated July 2006, is hereby incorporated by reference as if fully set forth herein and is available on the Board Policies web site.

16. Policy Review.-- As required by Fla. Stat. § 120.74(1), the Board shall review and revise this Policy as often as necessary to ensure that it complies with legal requirements, such as applicable current standards of binding decisions of the Eleventh Circuit Court of Appeals and the United States Supreme Court. Moreover, at least every fourth year, the Board will review the successes and failures of the M/WBE program and make a determination as to the need for a continuing M/WBE program.

17. Severability.-- If any section, paragraph, sentence, clause, phrase or word of this Policy is for any reason held by a Court to be unconstitutional, inoperative, or void, it is intended that to the maximum extent practicable such holding shall not affect the remainder of this Policy.