Good Faith Effort for Projects with MBE/WBE Goals
Good Faith Efforts are actions undertaken by a Contractor to achieve MBE or WBE Contract Goals which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the Contract Goals. Adequate good faith efforts also mean that a bidder actively and aggressively sought MBE/WBE participation. Simply stating goals are too exhaustive are not considered good faith efforts.
The Compliance Review Office (CRO) will consider the quality, quantity, and intensity of the different kinds of efforts a bidder has made. Listed below are examples of the types of actions a bidder can take in making a good faith effort to meet goals however, this list is not intended to be exclusive or exhaustive, nor is it intended to be a mandatory checklist.
- Identify subcontracting opportunities to be performed by MBEs/WBEs in order to increase the likelihood that the MBE and WBE goals will be achieved.
- Identify areas of work sufficient to meet entire goal. If barriers exist to meeting goal due to scope of work, you must clearly explain that in your narrative and breakout exactly how much work is available for subcontracting.
- The purpose of the program is to present subcontracting opportunities so you must look at all potential areas of work when determining subcontracting opportunities--even if you would generally self-perform a particular area of work.
- Solicitation through all reasonable and available means such as but not limited to advertising, written notices, use of Certified Firm Directories to seek the interest of all certified MBEs/WBEs who have the capability to perform the work of the contract. The bidder must allow MBEs/WBEs at least 10 days to respond to solicitations. The bidder must determine with certainty if the MBEs/WBEs are interested by taking appropriate steps to follow up initial solicitations.
- Provide adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist interested MBEs/WBEs in responding to a solicitation.
- Negotiating in good faith with interested MBEs/WBEs. It is the bidder’s responsibility to make a portion of the work available to MBE/WBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available MBE/WBE subcontractors and suppliers, so as to facilitate MBE/WBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of MBEs/WBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for MBEs/WBEs to perform the work.
A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including MBE/WBE subcontractors, and would take a firm’s price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using MBEs/WBEs is not in itself sufficient reason for a bidder’s failure to meet the contract MBE or WBE goals, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Bidding contractors are not, however, required to accept higher quotes from MBEs/WBEs if the price difference is excessive or unreasonable.
- Not rejecting MBEs/WBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The bidder’s standing within its industry, membership in specific groups, organizations, or associates and political or social affiliations (for example, union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the bidder’s efforts to meet the project goal.
- Making efforts to assist interested MBEs/WBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or bidder.
- Making efforts to assist interested MBEs/WBEs in obtaining necessary equipment, supplies, materials, or related assistance or services.
- Effectively using the services of available minority/women community organizations; minority/women contractors’ groups; Federal, State, and local minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of MBEs/WBEs.
- Any other evidence that the bidder submits which shows that the bidder has made reasonable good faith efforts to meet the MBE and WBE goal.
In addition, the CRO may take into account the following:
- Whether the bidder’s documentation reflects a clear and realistic plan for achieving the MBE and WBE goals.
- The bidders’ past performance in meeting the MBE and WBE goals.
- The performance of other bidders in meeting the MBE and WBE goals. If the apparent successful bidder fails to meet the MBE and WBE goals, but meets or exceeds the average MBE and WBE participation obtained by other bidders, the County may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made a good faith effort.