§ 2-80.31. M/WBE certification  


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  • (a) Purpose of M/WBE certification. No preferences will be extended to certified M/WBEs, unless otherwise provided by law. However, businesses eligible for certification as a M/WBE are encouraged to become certified and maintain their certification in order to assist in the tracking of M/WBE availability and awards of contracts to M/WBEs. This information is vital to determining whether race and gender neutral programs assist M/WBE firms or whether race and gender preferences are necessary in order to address any discrimination in the market.

    (b) Eligibility standards. An eligible MBE or WBE is a small for profit business concern domiciled in the county which is both owned and controlled by minorities or by women and whose gross receipts are within the standards as defined in section 2-80.21 above. Further, the business must meet all other criteria of a small business as provided above. Minorities and/or women must own at least fifty-one (51) percent of the business and the management and daily business operations are controlled by the minorities and/or women who own it. The ownership and control by minorities and/or women shall be real, substantial and continuing, and shall continue beyond the pro forma ownership of the firm as reflected in its ownership documents. The minority and/or women owners shall enjoy the customary incident of ownership and shall share in the risks and profits commensurate with their ownership interest, as demonstrated by an examination of the substance rather than form or arrangements.

    (1) Ownership. In determining ownership of the business, the contribution of capital or expertise by the minority and/or women owners to acquire their interest in the firm shall be real and substantial. Examples of insufficient contributions include, but are not limited to, a promise to contribute capital, a note payable to the firm or its owners who are not minorities or women, or the mere participation as an employee, rather than as a manager/owner.

    (2) Control. The minority and/or woman owner(s) must have operational and managerial control of the business.

    a. The primary consideration determining operational control and the extent to which the minority person and/or woman actually operates the business will rest upon the peculiarities of the industry of which the business is a part. Accordingly, in order to clarify the level of operational involvement of the minority person or woman in the business to be deemed as an M/WBE, the following examples are put forth and are not to be all-inclusive.

    1. The minority person and/or woman should have experience in the industry for which certification is sought.

    2. The minority person and/or woman should be able to demonstrate that basic decisions pertaining to the daily operation of the business are independently made.

    3. The minority person and/or woman should have some technical competence in the industry for which certification is sought. The minority person and/or woman should have a working knowledge of the technical requirements of the business needed to operate in the industry.

    b. Managerial control means that the minority and/or woman has the demonstrable ability to make independent and unilateral business decisions needed to guide the future and destiny of the business. For a minority and/or woman to demonstrate the extent of his/her control, the following examples are put forth and are not intended to be all-inclusive:

    1. Corporate bylaws or partnership agreements or other agreements should be free of restrictive language which dilutes the minority's or women's control, thus preventing him/her from making those decisions which affect the destiny of the business.

    2. The minority person and/or woman should be able to clearly show, through production of documents, the areas of control such as, but not limited to:

    i. Authority and responsibility to sign payroll checks and letters of credit.

    ii. Authority for negotiations and signature responsibility for insurance and/or bonds.

    iii. Authority for negotiations and/or signature services.

    If the owners of the firm who are not minorities or women are disproportionately responsible for the operation of the firm, then the firm is not to be considered an M/WBE within the meaning of this program. Where the actual management of the firm is contracted out to individuals other than the owner, those persons will be considered as controlling the business.

    (c) Application procedures. All applicants wishing to be considered as certified businesses must apply for M/WBE certification by completing an M/WBE disclosure affidavit which can be obtained through the office of small business assistance. Applicants must submit the documentation listed in section 2-80.30(b), as appropriate to their business and all of its affiliates. The office of small business assistance may request any other documentation necessary to determine eligibility. Documents not in English must be accompanied by a certified translation. In addition, applicants must submit documentation of the minority or woman status.

    (d) Application review and appeal procedures: The procedures for application review, recertification, decertification and appeals provided in section 2-80.30(d)—(j) shall apply equally for M/WBE certification.

(Ord. No. 02-064, § 11, 9-10-02; Ord. No. 05-048, § 6, 11-15-05; Ord. No. 08-014, § XVIII, 5-20-08; Ord. No. 2009-024, § VIII, 8-18-09; Ord. No. 2013-004, § III, 3-12-13)