100R84101
5601
                        U.S.  ENVIRONMENTAL  PROTECTION AGENCY
  RECIPIENT'S GUIDANCE FOR UTILIZATION  OF MINORITY BUSINESS ENTERPRISE IN PROCUREMENTS
                           UNDER EPA ASSISTANCE AGREEMENTS
                                     PREPARED
                                        BY

             THE OFFICE  OF  SMALL  AND DISADVANTAGED BUSINESS UTILIZATION
                            OFFICE OF THE ADMINISTRATOR
                             WASHINGTON, D.C.  20460

                                    MARCH 1984
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                                        Fs%,ort V,  L:brr;ry
                                        230  South Dc^;-r,rn  ,;V
                                        Chicago, IJUacis  €C;C04

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       RECIPIENT'S GUIDANCE FOR UTILIZATION OF MINORITY BUSINESS ENTERPRISE IN PROCUREMENTS
                              UNDER EPA ASSISTANCE AGREEMENTS


              On July 14, 1983, President Reagan issued Executive Order 12432 on

         "Minority Business Enterprise Development," which directed Federal agencies

         to develop annual plans establishing minority business enterprise (MBE)

         objectives and to encourage recipients of Federal grants and cooperative

         agreements to achieve a reasonable level of minority business participation

         in contracts awarded under its grants and cooperative agreements.  In awards

         made to State and local governments this encouragement is to be consistent

         with the principles of "federalism."

              Subsequently, on February 15, 1984, Administrator William D.

         Ruckelshaus issued his commitment memorandum on minority business

         enterprise.  In this statement he affirmed both his personal commitment

         and that of the Environmental Protection Agency (EPA) to furthering economic
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         opportunities for MBEs.

              This guidance is provided to assist grant recipients to achieve a

         reasonable minority business participation in subagreements.  It may also

         be used for procuring with small and women's businesses.

              As expressed in the Deputy Administrator's February 16, 1984,

         memorandum to the Assistant and Regional Administrators, the Agency is

         committed to the "fair share" concept which is now applicable to all

         EPA assistance agreements.  A fair share is defined as a reasonable

         commitment of subagreement funds commensurate with the total project

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funding, local demographic factors and the availability of minority and




women's businesses.  In those cases where there is a State or local




executive directive, ordinance or statute prescribing goals for MBE




participation, those goals will constitute the fair share.




     To implement the fair share concept, negotiations will be conducted




between State environmental officials or assistance recipients and a designated




EPA official.  As stated in the Deputy Administrator's memorandum," ... In




all probability, these early negotiations will establish the basis for




MBE utilization in the future.  The State's fair share should be based




upon the State project priority list, cumulative grant awards and other




goals or standards for utilization of minority businesses of the State




and potential grantees.  A fair share for each grant is not required."




     In the Wastewater Treatment Construction Grant Program, the Regional




Administrators will negotiate an overall fair share with delegated States.




The delegated State may allocate its fair share to particular construction




grant projects as it sees fit.  The delegated State and not EPA may




determine whether, and to what extent a fair share objective should be




established for each project.




     For other EPA financial assistance programs, the Assistant Administrator,




Regional Administrator, or a designated EPA official, as appropriate, will




conduct fair share negotiations directly with the recipients.




     As part of the fair share concept, recipients must comply with the MBE-




related requirements set forth in EPA's procurement regulations, 40 CFR




Part 33.  Specifically, in contracting for construction, supplies or services




on an EPA funded project, State and local government recipients must




follow the 6 affirmative steps contained in 40 CFR Section 33.240.




Contractors for these supplies, services and construction are also required

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          to carry out the affirmative steps in the award of subcontracts.  In

          accordance with 40 CFR Section 33.815, institutions of higher education,

          hospitals and other non-profit organizations must implement the "positive

          effort requirements" of OMB Circular A-110.  This circular provides,

          "Positive efforts shall be made by recipients to utilize ...  minority-owned
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          business sources of supplies and services.  Such efforts should allow these

          sources the maximum feasible opportunity to compete for contracts utilizing


          Federal funds."

               EPA offers the following suggestions to assist State and local government


          recipients in carrying out the affirmative steps of 40 CFR 33.240.  These

          suggestions may also be used by institutions of higher education, hospitals

          and other non-profit organizations in carrying out the "positive effort"

          standard:

               1.  Including qualified minority businesses on solicitation lists.

                      o  Do you, the recipient, maintain and update a listing of

                         qualified MBEs that can be solicited for supplies, construction

                         and/or services?

                      o  Is this listing appropriately provided to all interested parties

                         who have requested to be placed on your bidder's mailing

                         lists or requested copies of the bidding or proposing documents?

                      o  Do you contact the appropriate sources within your general area
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                         and State to identify qualified MBEs for placement on your

                         minority business listings?

                      o  Are any other MBE listings utilized such as the State's


                         minority business office, the Small Business Administration,

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          Minority Business Development Agency, USEPA Office of Small




          and Disadvantaged Business Utilization (OSDBU), or the




          Department of Transportation?




       o  Is this listing appropriately reviewed by State environmental




          agency personnel?




2.  Assuring that minority businesses are solicited.




       o  Do you conduct meetings, conferences, and follow-ups with




          MBEs, minority business associations, minority media, etc.,




          to inform these groups of supplies, services, and building




          opportunities?




       o  Do you conduct pre-bid, pre-solicitation, and post-award




          conferences to ensure that consultants, suppliers, and builders




          solicit MBEs?




       o  Do you provide bidders and offerers with listings of qualified




          MBEs and establish that a fair share of contracts should




          be awarded?




       o  Do you advertise in general circulation, trade publications,




          State agency publications of identified sources, minority




          focused media, etc., concerning contracting opportunities




          on your projects?




       o  Do you provide interested MBEs with adequate information




          about plans, specifications, timing and other requirements




          of the proposed project?




       o  Do you provide MBE trade organizations with succinct summaries




          of solicitations?




       o  Do you maintain a list of minority focused publications




          that may be utilized to solicit MBEs?

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3.  Dividing total requirements, when economically feasible, into




    small tasks or quantities to permit maximum participation of




    minority businesses.




       o  Is an analysis performed to identify portions of work that




          can be contracted and performed by qualified MBEs?




       o  Are the elements of the total project scrutinized to develop




          economically feasible units of work that are within the




          bonding range of MBEs?




       o  Are bid packages analyzed to afford MBEs maximum participation?




4.  Establishing delivery schedules, where requirements of the work




    permit, which will encourage participation by minority businesses.




       o  Do you consider lead times and scheduling requirements




          often needed by MBEs?




       o  Do you develop realistic delivery schedules which may




          provide for greater MBE participation?




       o  Do you consider notifying MBEs of future procurement




          opportunities so that they may establish bidding, solicitation




          and procurement plans?




5.  Using the services and assistance of the Small Business




    Administration and the Minority Business Development Agency of




    the U.S. Department of Commerce, as appropriate.




       o  Do you use the services of outreach programs sponsored by




          the Minority Business Development Agency and/or the Small




          Business Administration to recruit bonafide firms for




          olacement on MBEs bidders lists to assist in the development




          of bid packaging?

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            o  Do you use these services to provide management, technical




               and financial assistance to MBEs?




     6.   If the contractor awards subagreements, requiring the contractors




         to take the affirmative steps.




            o  Do you monitor work in progress to assess actual MBE




               participation and determine if MBE fair share will be met?




            o  Do you monitor and record contractor and consultants




               activities to ensure "affirmative steps" are being utilized?




     7.   Other Actions may include:




            o  Do you require the successful contractor to timely submit




               a subcontracting plan which includes the contractor's




               strategy for involving MBEs, the name of the contractor's




               MBE coordinator, a projected dollars amount of MBE




               utilization, etc.?




            o  Do you appoint knowledgeable MBE liaison officers who are




               familiar with contracting requirements and are able to




               assist contractors as well as MBEs?




            o  Does your MBE liaison officer assist contractors in determining




               whether subcontracting plans are feasible and their goals are




               attainable?




            o  Does your internal management system ensure effective contract




               administration of the MBE affirmative steps?




            o  Do you ensure proper reporting of MBE participation?




     The recipient is ultimately responsible for ensuring that the




contractor awarding subagreements carries out the affirmative steps as




required by the regulations.  If a fair share objective has been established

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for a particular project,  but is not achieved the mere fact of non-achievement


does not preclude an award, provided that the recipient can demonstrate


that the 6 affirmative steps were followed.


     The Agency is confident that a fair share of procurement dollars


will accrue to minority entrepreneurs if sincere, responsive efforts are


made hy recipients of funds made available under EPA grants or cooperative


agreements.
                                 U.S. Environment--!
                                 Region V  Uhr	

                                 230 Sou* DC-' -
                                 Chicago,

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