| Commercial Nondiscrimination |
Purpose and Intent.-- It is the intent of the School District of Palm Beach County to avoid becoming a passive participant in private sector commercial discrimination by refusing to engage in business with business firms that discriminate in the solicitation, selection, hiring, or treatment of vendors, suppliers, subcontractors, or commercial customers on the basis of race, gender, gender identity or expression, religion, national origin, ethnicity, sexual orientation, age, or disability by providing a procedure for receiving, investigating, and resolving complaints of discrimination filed against business firms that have submitted a bid or proposal for, have been selected to engage in, or are engaged in doing business with the School District.
Policy Statement. -- It is the policy of the School Board of Palm Beach County not to accept bids or proposals from, nor to engage in business with, any business firm that has discriminated on the basis of race, gender, gender identity or expression, religion, national origin, ethnicity, sexual orientation, age, disability, or any other form of unlawful discrimination in its solicitation, selection, hiring, or treatment of another business.
Scope.-- This Policy applies to all business firms and to all contracts to which the School Board is a party. Additionally, as to third-party contracts, every contract and other agreement between the School Board of Palm Beach County and any governmental agency, quasi-governmental agency, corporation, developer, or contractor, under which the agency, corporation, developer, or contractor receives any fiscal assistance from or through the School District for the purpose of contracting with businesses to perform real estate development, renovation, maintenance, or other services, must require the agency, corporation, developer, or contractor to comply with this Policy in awarding and administering that contract or agreement. .
Definitions.-- As used herein, the following terms have these meanings unless the context clearly requires a different meaning:
ALJ means an administrative law judge assigned by the Florida Department of Administrative Hearings (DOAH) to conduct hearings under this Policy.
Business firm means any person, firm, sole proprietorship, partnership, corporation, limited liability company, or other business entity or combination thereof, including any financial institution, developer, consultant, prime contractor, subcontractor, supplier, or vendor, that has submitted a bid or proposal, has been selected to do business, or is doing business with the School District, including selling or leasing supplies, or goods, or providing construction, financial, professional, or other services, in return for a fee or any other form of compensation.
Chief Counsel means the Chief Counsel to the School Board of Palm Beach County.
Contract means an agreement with any business firm (including a sole proprietorship) let by or on behalf of the School Board or School District for that business firm to sell or lease supplies or goods, or provides construction, financial, professional, or other services, in return for a fee or any other form of compensation.
Contractor means any business firm (including a sole proprietorship) that holds a contract let by or on behalf of the School Board or School District. (For purposes of the nondiscrimination clause in section (13) below, the term "contractor" also includes a subcontractor holding a subcontract as defined in subsection (4)(n)).
Discrimination means, in general, any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or treatment of a vendor, supplier, subcontractor, commercial customer, or any other business entity on the basis of race, gender, gender identity or expression, religion, national origin, ethnicity, sexual orientation, age, disability, or any other form of unlawful discrimination regarding the characteristics of that business entity's employees or owners. However, discrimination does not include otherwise lawful efforts, including those specified in Policy No. 6.143 ("Diversity and Equitable Utilization in Business") to remedy the effects of discrimination that has occurred or is occurring in the marketplace.
DOAH means the Florida Department of Administrative Hearings.
Financial Institution means any person or entity engaged in the business of lending money, guaranteeing loans, extending credit, securing bonds, or providing venture or equity capital to business entities, or that offers financial services in connection with School District projects or the administration of School District government. For example, financial institution includes any bank, savings and loan association, venture capital company, insurance company, bonding company, mortgage company, credit union, and broker.
Includes or Including means by way of illustration and not by way of limitation.
ODBP means the School District's Office of Diversity in Business Practices.
Presiding officer means, as appropriate to the context, the ALJ presiding over a formal hearing under Fla. Stat. § 120.57(1), or the designated hearing officer presiding over an informal hearing under Fla. Stat. § 120.57(2).
School Board or Board means The School Board of Palm Beach County, Florida, the policy-making governing body of the School District of Palm Beach County, which has authority to enter into contracts on behalf of the District School System.
School District or District means the School District of Palm Beach County and those agencies, departments, boards, commissions, government authorities, and corporations authorized to act on behalf of, or as agent for, the School District of Palm Beach County.
Subcontract means an agreement for the performance of a particular portion of work to be performed under a contract with the School Board or School District.
Complaints of Discrimination. -- Any adult person, business entity, association, organization, or government agency may file an administrative complaint with the ODBP Director stating facts showing or tending to show that a business firm has engaged in discrimination against one or more other businesses. Within 60 days after the action prohibited by this policy, the person, business entity, association, organization or government agency may file an administrative complaint using the Discrimination Complaint Form located on the Office of Diversity in Business Practices website and the Department of Records Management website. Within ten business days of the receipt of the complaint, the ODBP Director shall notify the business firm against whom the complaint was filed that a complaint has been received.
Investigation of Complaints. -- An investigative unit shall exist in the ODBP to review and investigate discrimination complaints filed under this Policy. The ODBP Director shall exercise his or her best judgment to assign ODBP staff persons and/or outside consultants to the investigative unit as necessary to conduct such investigations in a comprehensive, fair, competent, and efficient manner. (As may be necessary due to an unexpectedly time-intensive investigation, the ODBP Director may also request that the Superintendent temporarily assign other existing qualified District personnel to assist in this unit.) The investigative unit shall seek all relevant evidence from the complainant, from the respondent business firm, and from external sources relating to the allegations of the complaint.
Initial Findings and Recommendations. -- The ODBP Director will make initial findings and recommendations.
Based upon the investigative unit's review and investigation, the ODBP Director shall make an initial non-binding finding on each allegation stated in the complaint, that either:
the investigation produced sufficient evidence to find that the alleged discrimination did take place ("sustained");
the investigation failed to produce sufficient evidence to find that the alleged discrimination took place ("not sustained");
the investigation produced sufficient evidence to find that the alleged discrimination did not take place ("unfounded");
the investigation produced sufficient evidence to establish that the complainant knowingly made one or more false or frivolous allegations ("false or frivolous");
the allegation has been settled or otherwise resolved by agreement of the interested parties ("settled or resolved"); or
the allegation has been withdrawn ("withdrawn").
The ODBP Director (who may seek legal advice from the Chief Counsel or designated associate counsel) shall recommend appropriate action to be taken. That action may include additional investigation of the complaint, sanctions, remedies, or other action consistent with this Policy.
The initial non-binding findings and recommendations shall be made by the ODBP Director within 120 calendar days of receipt of the complaint. The ODBP Director may extend this time limit, after consultation with the Chief Counsel, for good cause or if the parties agree to mediate a settlement to the complaint.
The ODBP Director shall notify the complainant and the business firm within five business days of the issuance of the initial non-binding findings and recommendations, including an explanation of the reasons justifying the initial findings.
Hearings. -- If the ODBP Director determines that one or more allegations of discrimination within the scope of this Policy are sustained, the business firm against whom the allegations were made shall be entitled to an administrative hearing on the allegations and an opportunity to participate in the hearing.
Pursuant to F. A.C. r. 28-106.111(1), the ODBP shall notify the business firm of the information required by Fla. Stat. § 120.569(1) (e. g., that the business firm may request a hearing; the procedure for obtaining a hearing; and the pertinent time limits). The ODBP's notice shall also advise whether mediation under Fla. Stat. § 120.573 is available as an alternative remedy, and if available, that pursuit of mediation will not adversely affect the right to administrative proceedings in the event mediation does not result in a settlement.
If the business firm desires a hearing, the business firm must request an administrative hearing by filing a written request with the Board Clerk within twenty-one (21) calendar days of notice of the initial findings and recommendations, pursuant to F. A.C. r. 28-106.111(2). The request for hearing must contain all items required by Fla. Stat. § 120.569(2)(c) and F. A.C. r. 28-106.201(2) (for formal hearings involving disputed issues of material fact, under Fla. Stat. § 120.57(1)) or F. A.C. r. 28-106.301(2) (for informal hearings not involving disputed issues of material fact, under Fla. Stat. § 120.57(2)).
If the business firm properly and timely requests an administrative hearing involving disputed issues of material fact, the Chief Counsel shall notify DOAH within fifteen (15) days of receiving the request, and DOAH will assign an ALJ to conduct the administrative hearing.
DOAH will inform the business firm, the ODBP Director, and the Chief Counsel of the time and place for the hearing. The administrative hearing shall be held by the ALJ within ninety calendar days of the assignment of the ALJ. Whenever possible, the hearing shall be held in the place most convenient to all parties as determined by the ALJ.
The hearing shall be conducted in a manner consistent with Chapter 120, Florida Statutes and any due process rights to which any party is entitled. At a minimum, the hearing shall afford all parties an opportunity to present witnesses, conduct direct and cross-examination of witnesses, introduce relevant evidence, submit briefs, and present oral argument. At such hearing, the ODBP Director or the Director's designee shall present the evidence gathered by the investigative unit. Findings shall be made by the ALJ based upon a preponderance of all evidence presented.
If the business firm properly and timely requests an administrative hearing not involving disputed issues of material fact, the Chief Counsel shall notify DOAH within fifteen (15) days of receiving the request. Notwithstanding Policy 4.150, the informal hearing will be conducted under Fla. Stat. § 120.57(2) and F. A.C. r. 106.301 - 106.307 by a hearing officer who is a volunteer outside attorney selected by the Superintendent/designee (or, if such volunteer attorney is not available, the hearing may be conducted by any available Board member).
The presiding officer may issue protective orders for good cause to limit, or otherwise impose conditions on, access by any person to any document in the possession of a party, including any document in the School District's possession if exempt from the Public Records Act or in the record of the hearing if that particular document in the record is exempt from the Public Records Act.
If the business firm fails to properly and timely request an administrative hearing, the ODBP shall notify the business firm that the request is dismissed pursuant to Fla. Stat. § 120.569(2)(c) and that the initial non-binding findings and recommendations will become the final administrative decision of the School District pending review and approval by the Superintendent and School Board, and the School Board's action will constitute final agency action.
Pursuant to Fla. Stat. § 120.57(4), unless precluded by law, informal disposition may be made of any proceeding by stipulation, agreed settlement, or consent order, instead of through a hearing.
Disposition after a Hearing.-- Within thirty (30) days after the hearing or receipt of the hearing transcript, whichever is later, the presiding officer shall file a recommended order with the School Board including a caption, time and place of hearing, statement of the issues, findings of fact and conclusions of law, and recommendations for final agency action. The presiding officer's recommended order may affirm or reject the initial findings and recommendations, may substitute different findings and recommend appropriate remedies, or may return the case to the ODBP Director for further investigation and findings to be completed within a period of time specified by the presiding officer.
The presiding officer's recommended order shall be based upon a preponderance of the evidence contained in the hearing record, and shall reflect the evidentiary basis for its findings.
The Board will allow each party fifteen (15) days in which to submit written exceptions to the recommended order.
Pursuant to Fla. Stat. §§ 120.569 and 120.57, the School Board shall issue the final order within ninety (90) days, unless the time is waived by all parties, after:
the hearing is concluded (defined as the time when the hearing officer submits the recommended order to the Board and the recommended order is mailed to all parties), if an informal hearing is conducted by the District;
a recommended order is submitted to the Board and mailed to all parties, if the hearing is conducted by an ALJ; or
the District has received the written and oral material it has authorized to be submitted, if there has been no hearing.
The final order shall be considered at a regularly scheduled School Board meeting. The School Board may adopt the presiding officer's recommended order as its Final Order. The School Board in its final order may, for good cause, reject or modify the conclusions of law in the recommended order but may not reject or modify the findings of fact unless the School Board first determines from a review of the complete record that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The School Board may reduce or increase the recommended penalty in a recommended order, but may do so only with a review of the complete record. In cases where an ALJ provided a recommended order, the Board will provide a copy of its final order to DOAH within fifteen (15) days after the order is filed with the Board clerk.
Remedies and Penalties.-- When a complaint is sustained in a final order (upon the Superintendent's recommendation in cases where the business firm did not properly and timely request a hearing, or upon the Board's consideration of a recommended order after a hearing that was properly and timely requested), the School Board shall direct the Superintendent to take one or more of the following actions:
any remedy provided by law or agreed to by the respondent business firm, the complainant, and the School District;
implementation of procedures by the School District for debarment of the respondent business firm from bidding and contract awards on School District projects for a period of not more than three years under Board Policy 6.14(5);
rescission, suspension or termination of any current contract between the respondent business firm and the School District;
exercise of any other rights or remedies available to the School District under any current contract between the respondent business firm and the School District, including, but not limited to, liquidated damages; or
referral of the matter for criminal prosecution for fraud and other violations of Florida law if appropriate under the circumstances.
Sanctions for Filing a False or Frivolous Complaint.-- If the ODBP Director determines that one or more allegations of a complaint are false and that the complainant knew them to be false when filed, or that one or more of the allegations of a complaint are so frivolous that they are wholly without merit, the ODBP Director may refuse to review or investigate any complaint filed under this Policy by the same complainant for a period of up to three years. The ODBP Director may also recommend to the presiding officer or the School Board that the complainant be required to reimburse the District in the amount of the costs incurred for the investigation and review of the false or frivolous complaint. In the event the presiding officer requires such reimbursement to the School District, the complainant shall have the same right of appeal to the School Board as a respondent business firm has under section (9)(d) of this Policy.
Judicial Review.-- A party who, after having exhausted all administrative remedies available, is aggrieved by a final order of the School Board may seek judicial review of such final order pursuant to Fla. Stat. § 120.68.
Mandatory Nondiscrimination Contract Clause.-- Every written contract and subcontract (with the possible exception of certain unalterable form contracts or software licenses required by certain corporations or items purchased on State of Florida contracts or piggyback contracts from other agencies, as determined by the Superintendent/designee) shall contain a nondiscrimination clause that reads as follows: "Contractor shall not discriminate on the basis of race, gender, gender identity or expression, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring, or treatment of subcontractors, vendors, suppliers, or commercial customers. Contractor shall provide equal opportunity for subcontractors to participate in all of its public sector and private sector subcontracting opportunities, provided that nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the effects of marketplace discrimination that has occurred or is occurring in the marketplace, such as those specified in Palm Beach County School Board Policy 6.143. Contractor understands and agrees that violation of this clause is a material breach of the contract and may result in contract termination, debarment, or other sanctions."
Contractor Bid Requirements.-- All requests for bids or proposals issued by the School District shall include a clause that reads as follows: "As part of its bid or proposal, Bidder or Proposer shall provide to the School District a list of all instances within the past ten years where a complaint was filed or pending against Bidder or Proposer in a legal or administrative proceeding alleging that Bidder or Proposer discriminated on the basis of race, gender, gender identity or expression, religion, national origin, ethnicity, sexual orientation, age, or disability against its subcontractors, vendors, suppliers, or commercial customers, and a description of the status or resolution of each such complaint, including any remedial action taken."
Contract Disclosure Requirements. -- Every written contract issued by the School District and subcontract (with the possible exception of certain unalterable form contracts or software licenses required by certain corporations or items purchased on State of Florida contracts or piggyback contracts from other agencies, as determined by the Superintendent/designee) shall include a clause that reads as follows: "Upon the School District's request, and upon the filing of a complaint against Contractor pursuant to Palm Beach County School Board Policy 6.144, Contractor agrees to provide the School District, within sixty calendar days, a truthful and complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past five years on any of its contracts that were undertaken within the Palm Beach County School District relevant geographic market as defined Palm Beach County School Board Policy No. 6.143, including the total dollar amount paid by Contractor for each subcontract or supply contract. Contractor agrees to fully cooperate in any investigation conducted by the School District pursuant to this Policy. Contractor understands and agrees that violation of this clause is a material breach of the contract and may result in contract termination, debarment, and other sanctions."
Other Legal Remedies.-- The remedies provided by this Policy are in addition to any other statutory, legal, or equitable remedies that may be available and are not intended to be prerequisite to or exclusive of any other remedies.
Non-Interruption of Performance.-- The filing of a complaint, or the investigation or hearing or recommended order concerning a complaint under this Policy shall not hinder or affect the award of, performance of, or payment on a contract prior to a final administrative order that establishes a violation.
Rules of Construction.-- The provisions of this Policy are to be liberally construed to accomplish its policies and purposes.
Mandatory, Prohibitory, and Permissive Terms
Mandatory terms.-- "Must" and "shall" are each mandatory terms used to express a requirement or to impose a duty.
Prohibitory terms.-- "Must not", "may not", and "no. . . may" are each mandatory negative terms used to establish a prohibition.
Permissive terms.-- "May" is permissive.
Number.-- The singular includes the plural and vice versa.
Severability.-- All provisions of this Policy are severable. If a court determines that a word, phrase, clause, sentence, paragraph, subsection, section, or other provision is invalid or that the application of any part of the provision to any person or circumstances is invalid, the remaining provisions and the application of those provisions to other persons or circumstances shall remain in full force and effect to the maximum extent practicable.
Time Computations
Computation of time After an Act, Event, or Default
In computing any period of time prescribed by this Policy, the day of the act, event, or default after which the designated period of time begins to run is not included.
If the period of time allowed is more than seven (7) days, intermediate Saturdays, Sundays, and legal holidays (observed by the School District's administrative center) are counted.
If the period of time allowed is seven (7) days or less, intermediate Saturdays, Sundays, and legal holidays (observed by the School District's administrative center) are not counted.
The last day of the period so computed is included unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday observed by the School District's administrative center.
Computation of Time Before a Day, Act, or Event
In determining the latest day for performing an act that is required by this Policy to be performed a prescribed number of days before a certain day, act, or event, all days preceding that day, including intervening Saturdays, Sundays, and legal holidays observed by the School District's administrative center, are counted in the number of days so prescribed.
The latest day is included in the determination unless it is a Saturday, Sunday, or legal holiday, in which event the latest day is the first preceding day that is not a Saturday, Sunday, or legal holiday observed by the District's administrative center.
Administrative Guidance.-- The Superintendent may issue Bulletins or guidelines to explain the application of this Policy or to guide the District in carrying out this Policy.
| STATUTORY AUTHORITY: | Fla. Stat. §§ 1001.41(2); 1001.42(22); 1001.43(2), (6) |
| LAWS IMPLEMENTED: | Fla. Stat. §§ 1001.41(1), (3); 1001.42(10)(i); 1001.43(2) |
| HISTORY: | 5/31/2006; 7/29/2009 |