7b resolution
Item No.: _7b_attach______ Meeting Date: November 28, 2017 1 Resolution No. ---- 2 3 A RESOLUTION of the Port of Seattle Commission to establish a Women 4 and Minority Business Enterprise Policy Directive to 5 increase women and minority business opportunities and 6 repeal Resolutions No. 3506 and No. 3618. 7 8 WHEREAS, the Port of Seattle in the Century Agenda commits to create economic opportunity 9 for 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 our region is strengthened and more resilient when 13 opportunity is inclusive across our diverse communities; and 14 15 WHEREAS, the Port of Seattle is uniquely positioned among public agencies to lead in efforts of 16 justice and equity by providing a level platform to all businesses including Women and Minority 17 Business Enterprise (WMBE) firms to compete and succeed; and 18 19 WHEREAS, the 1998 passage of Initiative 200 by Washington State voters prohibited racial and 20 gender preferences by state and local government and upended the then established 21 affirmative action programs of state and local governments; and 22 23 WHEREAS, In 2003, in response to Initiative 200, the Port passed Resolution No. 3506 24 "establishing a program to develop mutually advantageous business relationships with small 25 businesses, and firms owned and operated by minorities, women and disabled"; and 26 27 WHEREAS, In 2010, the Port of Seattle passed Resolution No. 3618 "a program to develop 28 mutually advantageous business relationships with small businesses including those owned and 29 operated by people of color, women, people with disabilities, veterans, and the socio- 30 economically disadvantaged"; and 31 32 WHEREAS, the Port of Seattle efforts and programs as a result of Resolutions 3506 and 3618 33 have increased small business participation but have failed to increase WMBE participation; 34 and 35 36 WHEREAS, it is a priority for the Port of Seattle to affirmatively expand its efforts to increase 37 WMBE participation in Port contracts and ensure that WMBEs are afforded fair and equitable 38 opportunity to compete for Port contracts, succeed as subcontractors, and do not face unfair 39 and unnecessary barriers when seeking and performing on Port contracts; and Page 1 of 9 40 41 WHEREAS, current data and numerous studies show that WMBE participation in Port of Seattle 42 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 and result 45 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 highest 51 ethical standards and our business practices shall reflect integrity, accountability, honesty, 52 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. Resolutions 3506 and 3618 are repealed as follows: This resolution hereby repeals 57 Resolution No. 3506 and Resolution 3618. 58 59 Section 2. Transition from Resolution 3618 as follows: The Executive Director may continue to 60 operate under Resolution No. 3618, as needed, to allow for transition to this Resolution until 61 September 1, 2018. 62 63 SECTION 3. Establish the Women and Minority Business Enterprise Policy Directive as shown in 64 Exhibit A. 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 _________________________________ Tom Albro 75 76 _________________________________ Stephanie Bowman 77 78 _________________________________ John Creighton Page 2 of 9 79 80 _________________________________ Fred Felleman 81 82 _________________________________ Courtney Gregoire 83 Port of Seattle Commissioners Page 3 of 9 84 EXHIBIT A 85 Women and Minority Business Enterprise Policy Directive 86 87 SECTION 1 Purpose. 88 89 The Port finds that minority and women businesses are under-represented and have 90 disproportionally low participation in Port contracts and business opportunities. The purpose of 91 this Policy Directive is to provide the maximum practicable opportunity for increased 92 participation by minority and women owned and controlled businesses until such time as this 93 under-representation and under-participation no longer exists. 94 Port contracting in public works, consulting services, supplies, material, equipment, leasing 95 and other services creates the opportunity to leverage Port spending, assets, and create 96 business opportunities to increase WMBE participation. This policy is intended to positively 97 influence the number of WMBE businesses participating in the Port's construction projects, 98 supplier base, real property leases, and concession opportunities. 99 100 SECTION 2 Definitions. 101 102 For the purposes of this chapter: 103 104 "Affirmative Efforts" means documented reasonable attempts in good faith to contract with 105 Women and Minority Businesses. 106 107 "Availability" or "Available" as used in this chapter means a business that is: interested in 108 and capable of performing the work within the time frame required and to the quality specified 109 in the solicitation and contract. 110 111 "Capability" or "Capable" as used in this section means that a business appears able to 112 perform a Commercially Useful Function in performance of the work. 113 114 "Commercially Useful Function" means the performance of real and actual services in the 115 discharge of any contractual endeavor. 116 117 "Contract" means an agreement for construction of public works projects; for providing 118 consulting services; for furnishing supplies, material, and/or equipment; for leasing of real 119 property; for acting as a concessionaire; and/or for rending to the Port other services. 120 121 "Contractor" means a business that has a Contract with the Port. 122 123 "Division" means each and every operating division and administrative department of the 124 Port of Seattle under the management control of the Executive Director. 125 Page 4 of 9 126 "Women or Minority Business" (WMBE) means a business that is at least 51 percent owned 127 and controlled by women and/or minority (including, but not limited to African Americans, 128 Native Americans, Asians, and Hispanics) group members. 129 130 "Central Database" means an electronic database that collects aggregates and tracks 131 monthly Port-wide, division and department-level utilization of small business, Women and 132 Minority Owned Business, and other classifications across various categories and contract types 133 and promotes transparency for the public. 134 135 "Relevant demographic data" is defined as characteristic information related to a business 136 owner's sex/gender, race, ethnicity or veteran status as self-reported and/or certified by 137 another government entity. 138 139 "Participation" is defined as both the percent of opportunities in which WMBE firms have a 140 contractual interest as well as the number of unique WMBE firms with contract interests. 141 142 "Utilization" is defined as both the percent of contracting dollars paid to WMBE firms as 143 well as the number of unique WMBE firms under contract. 144 145 SECTION 3 Scope and Applicability. 146 147 This policy shall apply to all contracts and other activities at the Port, including construction 148 contracts, consulting contracts, purchased goods and services, leasing opportunities, and 149 concession opportunities. 150 151 SECTION 4 Responsibilities. 152 153 The Executive Director shall pursue the Century Agenda goal to increase WMBE utilization and 154 participation in Port contracts and shall: 155 156 A. Within 120 days of passage of this Policy Directive, analyze and benchmark WMBE 157 utilization and participation in all Port contracts (construction, consulting, supplies, leasing, 158 and concessions) and refine and update the analysis annually. 159 160 B. Within 180 days of passage of this Policy Directive, develop a WMBE Program that 161 identifies affirmative efforts to afford Women and Minority Businesses the maximum 162 practicable opportunity to meaningfully participate on Port Contracts and achieve the goal 163 to triple the number of WMBE firms (from the baseline) and increase WMBE participation 164 to 15% in each of the areas defined under the "contract" definition, by 2023. 165 166 C. Incorporate these WMBE goals into the Port's Long Range Plan (LRP) to the fullest extent 167 reasonable, including incorporation into LRP scorecards, reports, and LRP updates. 168 Further, the Executive Director shall prepare and publish an annual report each year titled 169 Women and Minority Business Enterprise Utilization and Participation Annual Report. Page 5 of 9 170 171 Section 5 Policy. 172 173 A. The WMBE Program shall include: 174 175 (1) Responsibilities, policies, practices, and processes that can change the Port 176 procurement and contracting processes and provide a more receptive environment 177 for the utilization of WMBE firms, and to ensure that businesses and contractors of all 178 tiers working on Port contracts and subcontracts utilize WMBE firms, wherever 179 feasible or as required; 180 181 (2) Development of a standard procedure for the Port-wide WMBE goal setting, and 182 collection and reporting of relevant demographic data to be stored in a central 183 database. 184 185 (3) Categories of covered contracts that will require WMBE Inclusion Plans and other 186 tools that will be applied to other categories of contracts Port-wide. 187 188 (4) Clear lines of responsibility and accountability for implementation of the WMBE 189 Program and a designated WMBE liaison for each division. 190 191 (5) Make WMBE goal setting and affirmative implementation efforts part of the annual 192 performance evaluation for each Port division director and their staff and require 193 standardized WMBE program implementation and training for all WMBE 194 representatives and Executive Leadership Team members. 195 196 B. The Port of Seattle Long Range Plan shall include as Priority Actions: 197 198 (1) Specific measures the Contract awarding authority will undertake to increase the 199 utilization and participation of Women and Minority Businesses. 200 201 (2) Specific goals by Division for Women Business Enterprise utilization and Minority 202 Business Enterprise participation and utilization: 203 204 (a) Each Port Division will review future procurements to identify available firms on 205 upcoming contracts to create a utilization goal that is justifiable, bold and 206 challenging. 207 208 (b) Construction goals, other than small works, based on historic utilization plus 2%, 209 until such time that a disparity study or other valid internal data can 210 demonstrate a reasonable level of utilization. 211 212 C. Improve inclusion and outreach to sustain and improve WMBE participation in Port 213 contracts: Page 6 of 9 214 215 (1) Support training and assistance to Port staff to increase participation in outreach and 216 to learn about the internal and external resources available to include WMBE firms in 217 their procurement and contracting 218 219 (2) Improve and expand technical assistance, business development, training and 220 mentoring programs for WMBE firms to enhance bidding expertise and promote 221 greater coordination with advocacy organizations, businesses, individuals and public 222 agencies and other Port departments; 223 224 (3) Create opportunities for members of the contracting and vendor community, Port and 225 other stakeholders to work collaboratively on recommendations for how the Port can 226 more effectively use the directives in this Policy Directive. 227 228 (4) Assist contractors desiring to bid on Port covered contracts to comply with the 229 affirmative efforts provisions for such Contract, and offer information as to 230 organizations and agencies available to assist such contractor in recruiting, mentoring, 231 training, or otherwise preparing potential subcontractors. 232 233 (5) Cooperate and establish formal and/or informal partnerships and mutual cooperation 234 with other public agencies to carry out the purposes of this Policy Directive, as 235 needed; 236 237 D. Affirmative efforts to assure equality of contracting opportunity required: 238 239 (1) Develop procurement tools, such as WMBE inclusion plans, and require bidders and 240 proposers to comply with the WMBE solicitation requirement in order to sustain and 241 improve participation of WMBE in Port covered contracts. 242 243 (2) Prepare and require that Port covered contracts include specifications pertaining to 244 equal opportunity affirmative efforts to assure equality in contracting opportunity, 245 and goals for subcontracting to Women and Minority Businesses. Any goals 246 established under this chapter shall be reasonably achievable, however, no utilization 247 requirements shall be a condition of contracting, except as may be allowed by RCW 248 49.60.400. 249 250 (3) Identify and implement a Port-wide method to regularly monitor and measure the 251 Port WMBE program and attainment of the goals by contractors. 252 253 (4) May establish aspirational goals for the participation of Women and Minority 254 Businesses in a particular Port Contract on a case-by-case basis. 255 256 (5) Work closely with other divisions and departments to ensure all policies, practices and 257 processes are consistent and complementary and make it easier for WMBE firms to Page 7 of 9 258 pursue Port contracts. 259 260 (6) Define, implement, and monitor appropriate processes and procedures to ensure 261 prompt payments and change order processing to address timely payment of 262 contractors, supplier and subcontractors at all tiers. Review and recommend potential 263 for including prompt pay in performance goals. 264 265 E. Affirmative efforts in Subcontracting: 266 267 (1) All Contractors, including WMBE firms, shall actively solicit bids for subcontracts to 268 qualified, available, and Capable WMBE to perform Commercially Useful Functions. 269 270 (2) Contractors shall consider the grant of subcontracts to women and minority bidders 271 on the basis of substantially equal proposals in the light most favorable to Women and 272 Minority Businesses. 273 274 (3) At the request of the relevant Port Department, when inclusion plan are required, 275 Contractors shall furnish evidence of the Contractor's compliance with these 276 requirements of women and minority solicitation and will submit evidence of 277 compliance with this section as part of any bid. Contractors shall provide records 278 necessary to document affirmative efforts to subcontract with Women and Minority 279 Businesses on Port Contracts; and 280 281 (4) Compliance with all requirements and past performance under this Policy Directive 282 may be included in the evaluation of future procurements. . 283 284 (5) In applying the provisions of this Policy Directive to Contracts funded in whole or in 285 part with federal funds and subject to 49 CFR Part 23, Subpart D, references to 286 Women and Minority Businesses shall also include federally recognized disadvantaged 287 business enterprises. In the event of a conflict between the provisions of this chapter, 288 or the rules implementing this Policy Directive, and the requirements of 49 CFR Part 289 23, Subpart D, or any other superseding applicable federal statute or regulation, the 290 provisions of the federal statute or regulation shall control. 291 292 F. Expanding Opportunity 293 294 (1) The Port shall expand opportunities for WMBE firms in other Port enterprise 295 opportunities, for example real property leases, to encourage and promote access to 296 Port facilities. 297 298 (2) The Port shall endeavor to ease WMBE firm utilization on public works projects in 299 respect to Project Labor Agreements as part of the negotiations to establish Project 300 Labor Agreement standard language. 301 Page 8 of 9 302 (3) The Port shall develop a baseline utilization number for Veteran Owned businesses 303 and propose a reasonable Port-wide to the Commission for inclusion in the Century 304 Agenda by September 1, 2019. 305 306 SECTION 6 Program Evaluation. 307 308 A. Benchmarks and metrics to evaluate the WMBE program shall include: 309 310 (1) Incorporation of these WMBE goals into the Port's Long Range Plan (LRP) to the 311 fullest extent reasonable, including incorporation into LRP scorecards, reports, and 312 LRP updates. 313 314 (2) Specific measures the Contract awarding authority will undertake to increase the 315 participation of Women and Minority Businesses; including the number of events or 316 outreach activities conducted to ensure responsiveness to bid opportunities 317 318 (3) Progress towards specific Division WMBE utilization goals, including the number of 319 opportunities a division has available, the goals established for those opportunities 320 and the actual utilization, including a periodic evaluation of Disparity Study results to 321 determine reasonableness of goals. 322 323 (4) Data reporting using the standard procedure identified in the WMBE Program for the 324 Port-wide collection and reporting of relevant demographic data including percent of 325 spend, number of businesses, and type of procurements. 326 327 (5) Preparation and publication of an annual report each year titled Women and 328 Minority Business Enterprise Utilization and Participation Annual Report. 329 330 B. The Internal Audit Director shall include the WMBE Program in Internal Audit Department's 331 2019 Work Plan to determine adherence to this policy and include in future years as the 332 Commission Audit Committee deems appropriate. 333 334 SECTION 7 Fiscal Implications 335 336 Fiscal implications shall be reviewed by the Executive Director annually, at a minimum, to ensure 337 the implementation of the Policy Directive is adequately resourced and shall submit a budget 338 request as appropriate. 339 340 SECTION 8 Research Findings. 341 The Port of Seattle Commission finds that it is in the Port's and the public's best interest to 342 increase the utilization of women and minority businesses at the Port of Seattle. 343 344 Attachment B: Research finding of fact and declarations of intent (under development) Page 9 of 9
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