6c resolution
Item No.: __6c_Reso_____ Meeting Date: December 5 , 2017 1 Resolution No. 3737 2 3 A RESOLUTION of the Port of Seattle Commission to establish a Diversity 4 in Contracting Policy Directive to increase women and 5 minority business opportunities and to repeal Resolutions 6 No. 3506 and No. 3618. 7 8 WHEREAS, the Port of Seattle mission is committed to create economic opportunity for 9 all, steward our environment responsibly, partner with surrounding communities, promote 10 social responsibility, conduct ourselves transparently, and hold ourselves accountable; and 11 12 WHEREAS, the economic vitality of a community is strengthened and more resilient 13 when opportunity is inclusive across our diverse communities; 14 15 WHEREAS, the Port of Seattle is uniquely positioned among public agencies to lead in 16 efforts of justice and equity by providing a level platform to all businesses including Women 17 and Minority Business Enterprise (WMBE) firms to compete and succeed; and 18 19 WHEREAS, the 1998 passage of Initiative 200 by Washington State voters prohibited 20 racial and gender preferences by state and local government led to an underutilization of 21 WMBE's at the Port and many other public agencies; and 22 23 WHEREAS, In 2003, in response to I-200, the Port passed Resolution No. 3506 a race 24 neutral approach "establishing a program to develop mutually advantageous business 25 relationships with small businesses, and firms owned and operated by minorities, women and 26 disabled"; and 27 28 WHEREAS, In 2010, the Port of Seattle passed Resolution No. 3618, a race neutral 29 approach to develop "a program to develop mutually advantageous business relationships with 30 small businesses including those owned and operated by people of color, women, people with 31 disabilities, veterans, and the socio-economically disadvantaged,"; and 32 33 WHEREAS, the Port of Seattle efforts and programs as a result of Resolutions 3506 and 34 3618 have increased small business participation but have not increased WMBE participation; 35 and 36 37 WHEREAS, it is a priority for the Port of Seattle to affirmatively expand its efforts to 38 increase WMBE participation in Port Contracts and ensure that WMBEs are afforded fair and 39 equitable opportunity to compete for Port Contracts, succeed as subcontractors, and do not 40 face unfair and unnecessary barriers when seeking and performing on Port Contracts; and Page 1 of 8 41 WHEREAS, current data and the 2014 disparity study shows that WMBE participation in 42 Port of Seattle opportunities has been and continues to be disparately low; and 43 44 WHEREAS, this policy will strengthen Port of Seattle efforts to eliminate this disparity 45 and result in more equity, diversity and inclusion for WMBE's in Port opportunities; and 46 47 WHEREAS, the Port of Seattle seeks to identify and change internal Port processes and 48 standards to clearly establish program goals and create accountability; and 49 50 WHEREAS, the Port of Seattle is committed to its values of conducting business with the 51 highest ethical standards and our business practices shall reflect integrity, accountability, 52 honesty, fairness and respect at all levels; 53 54 NOW, THEREFORE, BE IT RESOLVED by the Port of Seattle Commission as follows: 55 56 SECTION 1. Resolution 3506 adopted May 27, 2003, is hereby repealed. 57 58 SECTION 2. Transition from Resolution 3618. The Executive Director may continue to operate 59 under Resolution No. 3618, as needed, to allow for transition to Resolution 3737, until 60 September 1, 2018, at which time Resolution No. 3618 will be repealed and replaced with 61 Resolution 3737. 62 63 SECTION 3. The Diversity in Contracting Policy Directive as shown in Exhibit A is hereby 64 established. 65 66 SECTION 4. This Policy Directive shall be labeled and catalogued as appropriate, together with 67 subsequent Policy Directives, and shall be made readily available for use by Port staff and 68 members of the public as a governance document of the Port of Seattle. 69 70 ADOPTED by the Port Commission of the Port of Seattle at a duly noticed meeting 71 thereof, held this _____day of ____________, 2017, and duly authenticated in open session by 72 the signatures of the Commissioners voting in favor thereof and the seal of the Commission. 73 74 _________________________________ 75 76 _________________________________ 77 78 _________________________________ 79 80 _________________________________ 81 82 _________________________________ 83 Port of Seattle Commissioners Page 2 of 8 84 EXHIBIT A 85 Diversity in Contracting Policy Directive 86 87 SECTION 1 Purpose. 88 89 The Port finds that minority and women businesses are under-represented and have been 90 under-utilized on Port Contracts. The purpose this Policy Directive is to provide the maximum 91 practicable opportunity for increased participation by minority and women owned and 92 controlled businesses. Port Contracting in public works, consulting services, supplies, material, 93 equipment, other services creates the opportunity to leverage Port spend to increase WMBE 94 utilization. 95 96 SECTION 2 Definitions. 97 98 For the purposes of this chapter: 99 100 "Affirmative Efforts" means documented reasonable attempts in good faith to Contract with 101 Women and Minority Businesses. 102 103 "Availability" or "Available" as used in this chapter means a business that is: interested in 104 and capable of performing the work within the time frame required and to the quality specified 105 in the solicitation and Contract. 106 107 "Capability" or "Capable" as used in this section means that a business appears able to 108 perform a Commercially Useful Function in performance of the work. 109 110 "Commercially Useful Function" means the performance of real and actual services in the 111 discharge of any contractual endeavor. 112 113 "Contract" means an agreement for public works, consulting services, supplies, material, 114 equipment, or other services. 115 116 "Contractor" means a business that has a Contract with the Port. 117 118 "Division" means anyPort of Seattle organization structure that has a director that reports 119 to the Executive Director. 120 121 "Women or Minority Business" (WMBE) means a business that is at least 51 percent owned 122 and controlled by women and/or minority (including, but not limited to African Americans, 123 Native Americans, Asians, and Hispanics) group members. 124 125 "Central Database" means an electronic database that collects aggregates and tracks 126 monthly Port-wide, division and department-level utilization of small business, Women and Page 3 of 8 127 Minority Owned Business, and other classifications across various categories and Contract types 128 and promotes transparency for the public. 129 130 "Relevant demographic data" is defined as characteristic information related to a business 131 owner's sex/gender, race, ethnicity or veteran status as self-reported and/or certified by 132 another government entity. 133 134 "Utilization" is defined as both thepercent of Contracting dollars paid to WMBE firms as 135 well as the number of WMBE firms under Contract. 136 137 SECTION 3 Scope and Applicability. 138 139 This policy shall apply to all covered Contracts and other activities at the Port, including 140 construction and consulting Contracts, purchased goods and services. 141 142 SECTION 4 Responsibilities. 143 144 The Executive Director shall pursue the Century Agenda goal to increase WMBE utilization in all 145 Port Contracts and shall: 146 147 A. Within 120 days of passage of this Policy Directive, develop a Diversity in Contracting 148 Program that identifies affirmative efforts to afford Women and Minority Businesses the 149 maximum practicable opportunity to meaningfully participate on Port Contracts and 150 achieve the goal to triple the number of WMBE firms that Contract with the Port and 151 increase to 15% the percentage of dollars spent on WMBE Contracts, within five years of 152 program implementation. 153 154 B. Incorporate these WMBE goals into the Port's Long Range Plan (LRP) to the fullest extent 155 reasonable, including incorporation into LRP scorecards, reports, and LRP updates. 156 Further, the Executive Director shall prepare and publish an annual report each year titled 157 Diversity in Contracting Annual Report. 158 159 C. Improve inclusion and outreach to sustain and improve WMBE participation in Port 160 Contracts; 161 162 D. Take affirmative efforts to assure equality of Contracting opportunity through the 163 development and application of Inclusion Plans or other tools as necessary; 164 165 E. Expand opportunities for WMBE firms across Port functions, wherever practicable. 166 167 Section 5 Policy. 168 169 A. The Diversity in Contracting Program shall include: 170 Page 4 of 8 171 (1) Responsibilities, policies, practices, and processes that can change the Port 172 procurement and contracting processes and provide a more receptive environment 173 for the utilization of WMBE firms, and to ensure that businesses and contractors of all 174 tiers working on Port Contracts and subcontracts utilize WMBE firms, wherever 175 feasible or as required; 176 177 (2) Development of a standard procedure for the Port-wide WMBE goal setting, and 178 collection and reporting of relevant demographic data to be stored in a central 179 database. 180 181 (3) Categories of covered Contracts that will require WMBE Inclusion Plans and other 182 tools that will be applied to other categories of Contracts Port-wide. 183 184 (4) Clear lines of responsibility and accountability for implementation of the WMBE 185 Program and a designated WMBE liaison for each division. 186 187 (5) Make WMBE goal setting and affirmative implementation efforts part of the annual 188 performance evaluation for each Port division director and their staff and require 189 standardized WMBE program training, implementation and coordination for all 190 Division leaders and their WMBE representatives. 191 192 B. As instructed by the annual WMBE plan, the Port of Seattle Long Range Plan shall include 193 as Priority Actions: 194 195 (1) Specific measures the Contract awarding authority will undertake to increase the 196 utilization of Women and Minority Businesses. 197 198 (2) Specific goals by Division for WMBE utilization: 199 200 (a) Each Port Division will review future procurements to identify available firms on 201 upcoming Contracts to create a utilization goal that is justifiable, bold and 202 challenging. 203 204 (b) Construction goals, other than small works, based on historic utilization plus 2%, 205 until such time that a disparity study or other valid internal data can 206 demonstrate a reasonable level of utilization. 207 208 C. Improve inclusion and outreach to sustain and improve WMBE participation in Port 209 Contracts: 210 211 (1) Support training and assistance to Port staff to increase participation in outreach and 212 to learn about the internal and external resources available to include WMBE firms in 213 their procurement and Contracting 214 Page 5 of 8 215 (2) Improve and expand technical assistance, including WMBE certification, business 216 development, training and mentoring programs for WMBE firms to enhance bidding 217 expertise and promote greater coordination with advocacy organizations, businesses, 218 individuals and public agencies and other Port departments; 219 220 (3) Create opportunities for members of the contracting and vendor community, Port and 221 other stakeholders to work collaboratively on recommendations for how the Port can 222 more effectively use the directives in this Policy Directive. 223 224 (4) Assist contractors desiring to bid on Port covered Contracts to comply with the 225 affirmative efforts provisions for such Contract, and offer information as to 226 organizations and agencies available to assist such contractor in recruiting, mentoring, 227 training, or otherwise preparing potential subcontractors. 228 229 (5) Cooperate and establish formal and/or informal partnerships and mutual cooperation 230 with other public agencies to carry out the purposes of this Policy Directive, as 231 needed; 232 233 D. Affirmative efforts to assure equality of contracting opportunity required: 234 235 (1) Develop procurement tools, such as WMBE inclusion plans, and require bidders and 236 proposers to comply with the WMBE solicitation requirement in order to sustain and 237 improve participation of WMBE in Port covered Contracts; 238 239 (2) Prepare and require that Port covered Contracts include specifications pertaining to 240 equal opportunity affirmative efforts to assure equality in Contracting opportunity, 241 and goals for subcontracting to Women and Minority Businesses. Any goals 242 established under this chapter shall be reasonably achievable, however, no utilization 243 requirements shall be a condition of Contracting, except as may be allowed by RCW 244 49.60.400; 245 246 (3) Identify and implement a Port-wide method to regularly monitor and measure the 247 Port WMBE program and attainment of the goals by contractors. 248 249 (4) May establish aspirational goals for the participation of Women and Minority 250 Businesses in a particular Port Contract on a case-by-case basis. 251 252 (5) Work closely with other divisions and departments to ensure all policies, practices and 253 processes are consistent and complementary and make it easier for WMBE firms to 254 pursue Port Contracts; 255 256 (6) Define, implement, and monitor appropriate processes and procedures to ensure 257 prompt payments and change order processing to address timely payment of 258 contractors, supplier and subcontractors at all tiers. Review and recommend potential Page 6 of 8 259 for including prompt pay in performance goals. 260 261 E. Affirmative efforts in Subcontracting: 262 263 (1) All Contractors, including WMBE firms, shall actively solicit bids for subcontracts to 264 qualified, available, and Capable WMBE to perform Commercially Useful Functions. 265 266 (2) Contractors shall consider the grant of subcontracts to women and minority bidders 267 on the basis of substantially equal proposals in the light most favorable to Women and 268 Minority Businesses. 269 270 (3) At the request of the relevant Port Department, when inclusion plan are required, 271 Contractors shall furnish evidence of the Contractor's compliance with these 272 requirements of women and minority solicitation and will submit evidence of 273 compliance with this section as part of any bid. Contractors shall provide records 274 necessary to document affirmative efforts to subcontract with Women and Minority 275 Businesses on Port Contracts; and 276 277 (4) Compliance with all requirements and past performance under this Policy Directive 278 may be included in the evaluation of future procurements. . 279 280 (5) In applying the provisions of this Policy Directive to Contracts funded in whole or in 281 part with federal funds and subject to 49 CFR Part 23, Subpart D, references to 282 Women and Minority Businesses shall also include federally recognized disadvantaged 283 business enterprises. In the event of a conflict between the provisions of this chapter, 284 or the rules implementing this Policy Directive, and the requirements of 49 CFR Part 285 23, Subpart D, or any other superseding applicable federal statute or regulation, the 286 provisions of the federal statute or regulation shall control. 287 288 F. Expanding Opportunity 289 290 (1) The Port shall review and recommend how to expand opportunities for WMBE firms in 291 other Port enterprise opportunities, for example real estate leases, to encourage and 292 promote access to Port facilities by September 1, 2018. 293 294 (2) The Port shall develop a baseline utilization number for Veteran Owned businesses 295 and propose a reasonable Port-wide goal and division goals to the Commission for 296 inclusion in the Century Agenda by September 1, 2019. 297 298 SECTION 6 Program Evaluation. 299 300 A. Benchmarks and metrics to evaluate the Diversity in Contracting program shall include: 301 302 (1) Incorporation of these WMBE goals into the Port's Long Range Plan (LRP) to the Page 7 of 8 303 fullest extent reasonable, including incorporation into LRP scorecards, reports, and 304 LRP updates. 305 306 (2) Specific measures the Contract awarding authority will undertake to increase the 307 participation of Women and Minority Businesses; including the number of events or 308 outreach activities conducted to ensure responsiveness to bid opportunities 309 310 (3) Progress towards specific Division WMBE utilization goals, including the number of 311 opportunities a division has available, the goals established for those opportunities 312 and the actual utilization, including periodic review of Disparity Study results to 313 determine reasonableness of goals. 314 315 (4) Data reporting using the standard procedure identified in the WMBE Program for the 316 Port-wide collection and reporting of relevant demographic data including percent of 317 spend, number of businesses, and type of procurements. 318 319 (5) Preparation and publication of an annual report titled Women and Minority Business 320 Enterprise Utilization and Participation Annual Report 321 322 B. The Internal Audit Director shall include the Diversity in Contracting Program in Internal 323 Audit Department's 2019 Work Plan to determine adherence to this policy and include in 324 future years as the Commission Audit Committee deems appropriate. 325 326 SECTION 7 Fiscal Implications 327 328 Fiscal implications shall be reviewed by the Executive Director annually, at a minimum, to ensure 329 the implementation of the Policy Directive is adequately resourced and shall submit a budget 330 request as appropriate. Page 8 of 8
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