El Centro Municipal Code Div. 10 Local Contractor Preference

The purpose of this division is to encourage the employment of the local workforce in order to promote job opportunities for local citizens, enhance community involvement in city-funded public works projects and to strengthen the region's local economy. In addition, the city has a compelling interest in ensuring that it is neither an active nor passive participant in marketplace discrimination and in promoting an equal opportunity for all segments of the contracting community. This division, therefore, establishes a local business program for public works contracts, which includes a local business bid preference for public works projects.

(Ord. No. 13-03, § 1, 2-19-13)

This division applies to all public works contracts which are subject to public bidding requirements under local or state law, except as provided for in this division.

(Ord. No. 13-03, § 1, 2-19-13)

For the purposes of this division, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directive.

Contractor means any prime contractor or subcontractor performing work for the city pursuant to a public works contract.

Local business enterprise or LBE means a business that has both a principal place of business and significant employee presence residing in Imperial County and that has been in operation for no less than twelve (12) consecutive months.

Minority-owned small business means a small business:

(a) Which is at least fifty-one (51) percent owned by one (1) or more members of an identified minority group; or in the case of any publicly-owned business, at least fifty-one (51) percent of the stock of which is owned by one (1) or more members of an identified minority group; and

(b) Whose management and daily business operations are controlled by one (1) or more members of an identified minority group.

Principal place of business means a location where a business maintains a physical office and the point of sale through which it obtains no less than fifty (50) percent of its sales is located within the city.

Significant employee presence means no less than twenty-five (25) percent of a contractor's total number of full time equivalent employees.

Veteran-owned small business means a small business:

(a) Which is at least fifty-one (51) percent owned by one (1) or more veterans (as defined at 38 U.S.C. 101(2)); or in the case of any publicly-owned business, at least fifty-one (51) percent of the stock of which is owned by one (1) or more veterans; and

(b) Whose management and daily business operations are controlled by one (1) or more veterans.

Women-owned small business means a small business:

(a) Which is at least fifty-one (51) percent owned by one (1) or more women; or, in the case of any publicly-owned business, at least fifty-one (51) percent of the stock of which is owned by one (1) or more women; and

(b) Whose management and daily business operations are controlled by one (1) or more women.

(Ord. No. 13-03, § 1, 2-19-13)

To be eligible for the local contractor preference, a LBE shall:

(a) Be owned by construction professionals licensed by the California Contractors State Licensing Board;

(b) Be owned by construction professionals in good standing with the city;

(c) Have a city business license authorizing it to do business in the city;

(d) Provide a statement of an authorized representative of the business affirming that it meets the eligibility requirements of a LBE set forth in this division, signed under penalty of perjury under California law;

(e) Submit a completed certification in accordance with procedures established by the city; and

(f) Have a significant employee presence.

(Ord. No. 13-03, § 1, 2-19-13)

Any contractor claiming to be a LBE shall so certify in the bid response, in writing under penalty of perjury, to the city. Contractors are encouraged to provide documentation that supports the certification with the bid response. The city shall not be required to verify the accuracy of any such certifications, and shall have sole discretion to determine if a contractor meets the definition of a LBE. Certification cannot be made after bid opening; failure to certify LBE status in writing under penalty of perjury in the bid response is a material irregularity that will not be waived by the city.

(Ord. No. 13-03, § 1, 2-19-13)

(a) A contractor shall not be recognized as a LBE should any of the following occur:

(1) The contractor has used its status as a LBE to assist another business in obtaining benefits of this division to which the other business would not otherwise be entitled, or for any other fraudulent purpose; in the event of this occurrence, the contractor will not be recognized by the city as a LBE for a period of two (2) years; or

(2) The contractor ceases to meet eligibility requirements in accordance with the section 2-216 or ceases to fall within the definition of an LBE as set forth in section 2-215.

(b) If a contractor fails to comply with the provisions set forth in this division, the city may terminate or suspend the public works contract, seek debarment proceedings as appropriate or pursue any other remedy available by law.

(Ord. No. 13-03, § 1, 2-19-13)

(a) The city shall permit a bid discount of ten (10) percent for LBE contractors on all public works contracts. The maximum allowable bid discount is ten thousand dollars ($10,000.00). This preference is only for the purpose of determining the low bidder, and does not actually reduce the bid price.

(b) Contractor shall retain ultimate discretion to hire, promote, suspend, discharge or layoff employees and to accept and reject applicants for employment, subject to any applicable labor union agreement.

(c) For the purposes of calculating whether a contractor meets the eligibility requirements of a LBE, workers whose primary residence is outside California shall not be included in the calculation.

(d) For bid proposals in which a joint venture is formed between one (1) or more LBE and one (1) or more non-LBE, only the portion of the work to be performed by a LBE shall be eligible for the local contractor preference.

(e) In the event of a tie between a discounted bidder and a non-discounted bidder, the discounted bidder will be awarded the contract.

(f) In the event of a tie between two (2) discounted bidders (prime contractors), a discounted bidder that is also either a minority-owned small business, a veteran-owned small business or a women-owned small business will be awarded the bid. In the event the tie cannot be broken because both discounted bidders are also either a minority-owned small business, a veteran-owned small business or a women-owned small business, the bid will be awarded by lot.

(Ord. No. 13-03, § 1, 2-19-13)

This division shall not apply to the following public works contracts:

(a) Contracts where the provisions of this division would conflict with federal or state law or any applicable grant provision;

(b) Contracts between the city and another public agency;

(c) Emergency contracts; or

(d) Sole source contracts.

(Ord. No. 13-03, § 1, 2-19-13)