San Diego Municipal Code Div. 35 Nondiscrimination in Contracting

(“Nondiscrimination in Contracting” added 4-10-2000 by O-18785 N.S.)

This Division is intended to further the City’s policy not to engage in business with business firms that discriminate in the solicitation, selection, hiring, or treatment of subcontractors, vendors, or suppliers on the basis of race, gender, gender expression, gender identity, religion, national origin, ethnicity, sexual orientation, age, or disability by providing a procedure for receiving, investigating, and resolving complaints of discrimination filed against business firms that have submitted a bid or proposal for, have been selected to engage in, or are engaged in doing business with the City. (“Purpose and Intent” added 4-10-2000 by O-18785 N.S.) (Amended 5-5-2015 by O-20480 N.S.; effective 6-4-2015.)

All terms defined in this Division appear in italics. For purposes of this Division:

Appeals Officer means an individual appointed by the City Manager to conduct
hearings on appeals of decisions issued by the Hearing Officer.

Business firm means any person, firm, partnership, corporation, or other business
entity or combination thereof, including any financial institution, prime contractor,
subcontractor, supplier, or vendor, that has submitted a bid or proposal, has been
selected to do business, or is doing business with the City, including selling or leasing
supplies, or goods, or providing construction, financial, professional, or other
services, for a fee.

City means the City of San Diego and those agencies, boards, commissions, and
corporations authorized to act on behalf of, or as agent for, the City of San Diego.

Contract means an agreement with any person let by or on behalf of the City for that
person to provide labor, materials, goods, supplies, or services. It includes major
public works contracts and minor public works contracts as defined in Section
30.3003 of this Municipal Code.

Director means the Deputy Director responsible for the program, or his or her
representative.

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Discrimination means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or treatment of a business firm because of the race, gender, gender expression, gender identity, religion, national origin, ethnicity, sexual orientation, age, disability, or any other form of unlawful discrimination regarding the characteristics of its employees or owners.

Financial institution means any person or entity engaged in the business of lending money, guaranteeing loans, extending credit, securing bonds, providing venture or equity capital, or that offers financial services in connection with City projects. Financial institution includes banks, savings and loans, venture capital companies, insurance companies, bonding companies, mortgage companies, credit unions, and brokers.

Hearing Officer means an individual appointed by the City Manager to conduct hearings under this Division.

Person has the same meaning as in Municipal Code section 11.0210.

Program means the Equal Opportunity Contracting Program or its successor.

Subcontract means an agreement for the performance of a particular portion of work to be performed under a contract with the City. (Amended 9-3-2002 by O-19095 N.S.) (Amended 5-5-2015 by O-20480 N.S.; effective 6-4-2015.)

This Division applies to all business firms, contracts, and subcontracts, but does not apply to contracts to which any city (other than the City), county, district, or other political subdivision, or any joint powers authority created under authority of law, or other public entity, or any other group or combination of the foregoing acting as a unit, is also a party. (“Scope” added 4-10-2000 by O-18785 N.S.)

It is the policy of the City of San Diego not to accept bids or proposals from, nor to engage in business with, any business firm that has discriminated on the basis of race, gender, gender expression, gender identity, religion, national origin, ethnicity, sexual orientation, age, disability, or any other form of unlawful discrimination in its solicitation, selection, hiring, or treatment of another business. (“Nondiscrimination Policy” added 4-10-2000 by O-18785 N.S.) (Amended 5-5-2015 by O-20480 N.S.; effective 6-4-2015.)

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Any person may file an administrative complaint with the Director stating facts showing or tending to show that a business firm has engaged in discrimination against one or more other businesses. Within ten business days, the Director shall notify the business firm against whom the complaint was filed that a complaint has been received. (“Complaints of Discrimination” added 4-10-2000 by O-18785 N.S.)

The Program’s investigative unit shall review and investigate discrimination complaints filed under this Division. (“Investigation of Complaints” added 4-10-2000 by O-18785 N.S.)

Based upon the investigative unit’s review and investigation, the Director shall make an initial non-binding finding of each allegation stated in the complaint, that either:

(a) the investigation produced sufficient evidence to find that the alleged
discrimination did take place (“sustained”);

(b) the investigation failed to produce sufficient evidence to find whether the
alleged discrimination took place (“not sustained”);

(c) the investigation produced sufficient evidence to find that the alleged
discrimination did not take place (“unfounded”);

(d) the investigation produced sufficient evidence to establish that the
complainant knowingly made one or more false or frivolous allegations
(“false or frivolous”);

(e) the allegation has been settled or otherwise resolved with the agreement of the
interested parties; or

(f) the allegation has been withdrawn.

The Director shall recommend to the City Manager, or his or her representative
appropriate action to be taken. That action may include additional investigation of the
complaint, sanctions, remedies or other action consistent with this Division. The
initial non-binding findings and recommendations shall be made by the Director

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within 120 calendar days of receipt of the complaint. The City Manager may extend this time limit at the request of the Director and for good cause or if the parties agree to mediate the complaint pursuant to Division 11, Article 2 of Chapter 1. The Director shall notify the complainant and the business firm within five business days of the initial findings and recommendations, including an explanation of the reasons justifying the initial findings. (“Initial Findings and Recommendations” added 4-10-2000 by O-18785 N.S.)

(a) If the Director determines that one or more allegations are sustained, the business firm against whom the allegations were made shall be entitled to an administrative hearing on the allegations and an opportunity to participate in the administrative hearing. The business firm must request an administrative hearing within fifteen calendar days of notice of the initial findings. The hearing shall be held before a Hearing Officer within sixty calendar days of issuance of the Director’s initial findings.

(b) Based upon the evidence presented at the administrative hearing, and within
thirty calendar days of the hearing, the Hearing Officer may affirm or reject
the initial findings and recommendations, may substitute different findings
and order appropriate remedies, or may return the case to the Director for
further investigation and findings.

(c) Except where they conflict with this Division or the rules and regulations
established by the City Manager pursuant to this Division, the hearing shall be
conducted pursuant to the administrative enforcement hearing procedures set
forth in Division 4, Article 2 of Chapter 1.
(“Hearings” added 4-10-2000 by O-18785 N.S.)

When a complaint is sustained, the Hearing Officer shall order any one or more of the following actions:

(a) Any remedy provided by law or agreed to by the business firm;

(b) Recommendation to the City Manager and City Attorney for debarment of the
business firm from bidding and contract awards on City projects for a period
of not more than three years, according to the procedures set forth in Division
8, Article 2 of Chapter 2;

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(c) Suspension or termination of any current contract between the business firm
and the City; or,

(d) Referral of the matter for criminal prosecution, if appropriate under the
circumstances.
(“Remedies” added 4-10-2000 by O-18785 N.S.)

If the Director determines that one or more allegations of a complaint are false and that the complainant knew them to be false when filed, or that one or more of the allegations of a complaint are so frivolous that they are wholly without merit, the Director may refuse to review or investigate any complaint filed under this Division by the same complainant for a period of up to three years. The Director may also recommend monetary sanctions against the complainant in the amount of the costs incurred by the City for the investigation and review of the false or frivolous complaint. (“Sanctions For The Filing Of A False or Frivolous Complaint” added 4-10-2000 by O-18785 N.S.)

A business firm against whom a complaint has been filed or a complainant may appeal the decision of the Hearing Officer by filing a request for an appeal in writing with the City Manager within ten calendar days from service of the notice of the decision. The City Manager, or his or her representative, shall within ten calendar days of receipt, grant or deny the request for an appeal. If the request for an appeal is denied, the Hearing Officer’s decision shall be the final administrative decision. If the request for an appeal is granted, the City Manager shall designate an Appeals Officer to hear the appeal. The appeal shall be heard and the Appeals Officer shall render a final administrative decision within forty-five calendar days of granting the request for an appeal. Except where they conflict with this Division or the rules and regulations established by the City Manager pursuant to this Division, the appeal hearing shall be conducted pursuant to the administrative enforcement hearing procedures set forth in Division 4, Article 2 of Chapter 1. (“Appeals” added 4-10-2000 by O-18785 N.S.)

Every contract and subcontract shall contain a nondiscrimination clause that reads as follows:

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Contractor shall not discriminate on the basis of race, gender, gender expression, gender identity, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring, or treatment of subcontractors, vendors, or suppliers. Contractor shall provide equal opportunity for subcontractors to participate in subcontracting opportunities. Contractor understands and agrees that violation of this clause shall be considered a material breach of the contract and may result in contract termination, debarment, or other sanctions. (“Mandatory Nondiscrimination Contract Clause” added 4-10-2000 by O-18785 N.S.) (Amended 5-5-2015 by O-20480 N.S.; effective 6-4-2015.)

All requests for bids or proposals issued by the City shall include the following language:

As part of its bid or proposal, Bidder shall provide to the City a list of all instances within the past ten years where a complaint was filed or pending against Bidder in a legal or administrative proceeding alleging that Bidder discriminated against its employees, subcontractors, vendors, or suppliers, and a description of the status or resolution of that complaint, including any remedial action taken. (“Contractor Bid Requirements” added 4-10-2000 by O-18785 N.S.)

Every contract issued by the City shall include the following language:

Upon the City’s request, Contractor agrees to provide to the City, within sixty calendar days, a truthful and complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past five years on any of its contracts that were undertaken within San Diego County, including the total dollar amount paid by Contractor for each subcontract or supply contract. Contractor further agrees to fully cooperate in any investigation conducted by the City pursuant to the City’s Nondiscrimination in Contracting Ordinance. Contractor understands and agrees that violation of this clause shall be considered a material breach of the contract and may result in contract termination, debarment, and other sanctions. (“Contract Disclosure Requirements” added 4-10-2000 by O-18785 N.S.)

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The remedies provided by this section are in addition to any other statutory, legal, or equitable remedies that may be available and are not intended to be exclusive. (“Other Legal Remedies” added 4-10-2000 by O-18785 N.S.)

The filing, investigation, hearing, and appeal of a complaint under this Division shall not hinder or affect the award of, performance of, or payment on a contract prior to a final administrative decision that establishes a violation. (“Non-Interruption of Performance” added 4-10-2000 by O-18785 N.S.)

The City Manager shall establish such rules and regulations as may be necessary to implement this Division. (“Policies and Procedures” added 4-10-2000 by O-18785 N.S.)

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Article 2: Administrative Code