220 R.I. Code R. 220-RICR-80-10-2.8

Current through December 26, 2024

Section 220-RICR-80-10-2.8 - Request for Quotes

A. This section applies whenever the Division or a State Agency seeks to procure goods, services, and/or public works projects through the issuance of an RFQ.

B. Aggregate Utilization Rate. The Aggregate Utilization Rate is ten percent (10%) provided that, in the event the percentage set forth by R.I. Gen. Laws § 37-14.1-6 is amended, the Aggregate Utilization Rate herein shall also be amended so that it always reflects the percentage set forth by R.I. Gen. Laws § 37-14.1-6.

C. Sub Goals. With the approval of the Director, the ODEO may establish Sub Goals. Sub Goals shall not be approved unless the ODEO demonstrates that the Sub Goals are consistent with underutilization data received through a disparity study and/or pertinent analytic data derived from the recordkeeping of State Agencies.

D. State Agency Responsibilities

1. MBE/WBE Coordinator. For each RFQ issued, the Using Agency shall designate an MBE/WBE Coordinator no later than the time the RFQ is issued. For each RFQ assigned to him or her, the MBE/WBE Coordinator shall be responsible for compliance oversight and tracking and recordkeeping all data and information that is required to be reported by each State Agency under § 2.11 of this Part.

2. Agency Procedures. Each State Agency shall attempt to achieve the Aggregate Utilization Rate by applying one of the two methods as described in §§ 2.8(D)(3) and (4) of this Part.

3. Prime Contractor Method. For each procurement where Bidders will be serving as a prime contractor, the Using Agency shall ensure that it tries to achieve, at a minimum, the Aggregate Utilization Rate. The Using Agency shall ensure that the Bidder either meets or exceeds this requirement or has been granted a good faith waiver.

4. No Prime Contractors. In lieu of using the prime contractor method described in § 2.8(D)(3) of this Part above, the Using Agency may meet the Aggregate Utilization Rate by ensuring that the rate is met in the aggregate for each fiscal year. MBEs/WBEs may be solicited directly to accomplish this requirement.

5. Compliance with Sub Goals. In the event Sub Goals are established by the ODEO, State Agencies must track all data and keep records relating to the established Sub Goals.

E. Bidder Responsibilities

1. Acknowledgement. A Bidder shall include with its bid or quote, a statement acknowledging the provisions of R.I. Gen. Laws Chapter 37-14.1 and its obligation to meet the Aggregate Utilization Rate. Satisfying this requirement means that a minimum of the Aggregate Utilization Rate of the total dollar value of work to be performed in relation to the procurement will be performed by certified MBEs/WBEs. If a Bidder is an MBE/WBE, it may satisfy this requirement by performing a minimum of the Aggregate Utilization Rate of the total dollar value of work itself.

2. Submission of MBE/WBE Compliance Plan. Bidders must submit an MBE/WBE Compliance Plan to the Division. The MBE/WBE Compliance Plan shall identify each MBE/WBE name, each subcontract dollar amount and type, and each subcontract that the Bidder projects will be awarded to MBEs/WBEs over the period of the project. Unless otherwise indicated in the solicitation, the Bidder must submit this MBE/WBE Compliance Plan within five business days of receipt of a tentative award issued by the Division.

3. MBE/WBE Liaison Officer. The chief executive officer of each Bidder shall designate an MBE/WBE liaison officer who shall be responsible for coordinating with the ODEO, Division and the Using Agency through the life of the contract.

F. Approval or Disapproval of MBE/WBE Plan

1. Review. The MBECO shall review MBE/WBE Compliance Plans. Any MBE/WBE Compliance Plan that reasonably ensures compliance with the Aggregate Utilization Rate requirement shall be approved.

2. Impossibility of Compliance. Where the Bidder has proved that for reasons beyond its control, compliance with the Aggregate Utilization Rate requirement is impossible, the MBECO may approve an MBE/WBE Compliance Plan that ensures compliance with an MBE/WBE utilization rate of less than the Aggregate Utilization Rate. To prove impossibility of compliance, the Bidder must demonstrate the following:

a. The Bidder is making all appropriate good faith efforts as listed in § 2.8(G)(4) of this Part to increase MBE/WBE participation to the Aggregate Utilization Rate level.

b. Despite the Bidder's efforts, the Bidder's MBE/WBE Compliance Plan represents a reasonable exception to the Aggregate Utilization Rate due to valid reasons such as the lack of availability and/or willingness of qualified MBEs/WBEs to work on the contract.

3. Revised Plan. If the MBECO does not approve the MBE/WBE Compliance Plan that the Bidder has initially submitted, the Bidder, after consulting with the MBECO, shall present a revised plan to the MBECO for review.

4 Reconsideration. Within five business days of having its MBE/WBE Compliance Plan denied by the MBECO, the Bidder may appeal to the Associate Director of ODEO for reconsideration. All appeals must be in writing and addressed to the Associate Director of ODEO, One Capitol Hill, 3rd Floor, Providence, RI 02908. A written reconsideration decision will be issued by the Associate Director of ODEO within thirty (30) business days of receipt provided that the Associate Director of ODEO may extend such time upon good cause.

5. Failure to Have an Approved Plan. A Bidder's failure to have an approved MBE/WBE Compliance Plan constitutes non-compliance with the provisions of R.I. Gen. Laws Chapter 37-14.1.

G. Continuing Disclosure

1. On-Site Inspections. The Division, ODEO and the Using Agency's MBE/WBE Coordinator are permitted to periodically conduct on-site inspections to determine compliance with the provisions of R.I. Gen. Laws Chapter 37-14.1 and § 2.8 of this Part. The Division, ODEO, or the Using Agency's MBE/WBE Coordinator may require a Bidder to furnish copies of purchase orders, subcontracts, cancelled checks, and other records needed to substantiate a Bidder's compliance with its approved MBE/WBE Compliance Plan.

2. Change Orders. If during the life of the contract or project, a change order is issued by the Division, the Proposer shall notify the ODEO of the change as soon as reasonably possible. Proposers must submit to the ODEO a revised MBE/WBE Compliance Plan consistent with achieving the Aggregate Utilization Rate on any change order amounts.

3. Notice of Failure. If a Bidder fails to meet the requirements outlined in its approved MBE/WBE Compliance Plan, it shall explain to the Division, in writing, why the requirements could not be met and why meeting the requirement was beyond the Bidder's control.

4. Good Faith Waivers. The Division in consultation with the ODEO may issue a good faith waiver which shall exempt the Bidder from meeting its MBE/WBE requirements. To determine whether a Bidder has a good faith reason for failing to meet its requirements, the Division may consider, among other factors:

a. Whether the Bidder attended any pre-solicitation or pre-bid meetings that were scheduled by the Division to inform MBEs/WBEs of contracting or subcontracting opportunities;

b. Whether the Bidder advertised in general circulation, trade association, and minority focus media concerning the subcontracting opportunities;

c. Whether the Bidder provided written notice to a reasonable number of specific MBEs/WBEs that their interest in a contract was being solicited, in sufficient time to allow the MBEs/WBEs to participate;

d. Whether the Bidder followed up with MBEs/WBEs that showed an initial interest by contacting the firms to determine whether they were interested;

e. Whether the Bidder selected portions of work to be performed by MBEs/WBEs in order to increase the likelihood of meeting MBE/WBE participation requirements (including, where appropriate, breaking down contracts into economically feasible units to facilitate MBE/WBE participation);

f. Whether the Bidder provided interested MBEs/WBEs with adequate information about the plans, specifications and requirements of the contract;

g. Whether the Bidder negotiated in good faith with interested MBEs/WBEs;

h. Whether the Bidder made suggestions to interested MBEs/WBEs to assist them in obtaining bonding, lines of credit, or insurance required by the Bidder;

i. Whether the Bidder effectively used the services of available minority community organizations, minority contractors' groups, local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of MBEs/WBEs.

5. Remedial Action. If the Bidder does not make such an explanation, or if the Division determines that the Bidder's explanation does not justify its failure to meet the requirements in its approved MBE/WBE Compliance Plan, the Division may direct the Bidder to take appropriate remedial action. Failure to take remedial action directed by the Division constitutes non-compliance with the provisions of R.I. Gen. Laws Chapter 37-14.1 and the Bidder shall be subject to the sanctions as prescribed in R.I. Gen. Laws § 37-14.1-8.

H. Concurrent Compliance with Federal Law. The Aggregate Utilization Rate requirements set forth in § 2.8 of this Part can be satisfied concurrently with similar requirements mandated under federal law.

I. Exceeding Lowest Bid by Five Percent. Nothing in § 2.8 of this Part shall be construed to require the award of a contract to an MBE/WBE whose bid exceeds the lowest bid by five percent (5%). Nothing in § 2.8 of this Part shall be construed to require the acceptance of non-conforming goods or services.

220 R.I. Code R. 220-RICR-80-10-2.8