(a) “Affirmative procurement initiatives (APIs)” means waivers, bid incentives, price preferences, optimization of diverse business development program, subcontracting, small contract rotation program, mentor-protege program, and MBE or WSSC-approved SLBE preference points in the proposal evaluations, expanded unbundling of contracts, bonding and insurance requirements, and expedited payments for subcontractors.
(b) “Architectural and engineering (A&E)” means professional services of an architectural or engineering nature; or required to be performed or approved by a person licensed, registered, or certified to provide such services; or related to research, planning, development, design, construction, alteration, or repair of real property; or incidental services, which such individuals perform, including studies, investigations, surveying, mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services. Systems engineering related to WSSC information technology is included in professional services.
(c) “Award” means the final selection of a bidder or offeror for a specified prime contract or subcontract dollar amount. Contract awards are made by the Commission to prime contractors or vendors and by prime contractors or vendors to subcontractors or sub-vendors, usually pursuant to an open invitation for bid (IFB) or request for proposal (RFP) or qualification process. (Contract awards are to be distinguished from contract payments in that they only reflect the anticipated dollar amounts instead of actual dollar amounts that are paid to a bidder or offeror under an awarded contract.)
(d) “Bid discounts” means a race- and gender-conscious remedy for competitively bid contracts. These discounts are subject to the Public Utilities Article, § 20-204(b)(10), Annotated Code of Maryland (and any successor provision).
(e) “Bidder” means a firm submitting a price or proposal in response to an invitation for bid (IFB) or request for quote (RFQ).
(f) “Commercially useful function” means a business enterprise or firm performs a commercially useful function when, based on all relevant facts and circumstances, it is responsible for execution of the work of the contract by actually performing, managing and supervising the work involved. Thus, the enterprise or firm must be responsible, with respect to material and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable) and paying for the material itself. A minority business enterprise (MBE) does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of MBE participation. In determining whether an MBE is such an extra participant, the OSDI will examine similar transactions, particularly those in which MBEs do not participate.
(g) “Construction” means the process of building, altering, repairing, improving, or demolishing any public facility, including any public structure, public building, pipelines, plants, infrastructure, or other public improvements of any kind to real property. It does not include the routine operation, routine repair, or routine maintenance of any existing public facility, including structures, buildings, plants, pipelines, infrastructure, or real property. Construction materials and supplies may be part of a construction purchase if procured by the contractor. If construction materials and supplies are purchased directly by WSSC, they are classified as goods and services purchases.
(h) “Contracting area(s)” means WSSC’s four broad contracting areas of architectural and engineering, construction, goods and services and professional services. Also referred to as “industry categories.”
(i) “Disparity study” means the most recent study, procured or performed by the Commission, to assess the existence of discrimination in the geographic and product markets in which the Commission participates, through the analysis of quantitative and qualitative evidence.
(j) “Eligible MBE” means any firm that:
(1) Meets the definition of an MBE in subsection (t) of this section;
(2) Is a member of a group of firms that the most recent disparity study demonstrates, by a strong basis in evidence, has been subjected to racial, ethnic or gender discrimination; and
(3) Is designated in a list or chart maintained on the WSSC website as required by WSSC 6.30.240.
(k) “Goal” means either an annual, aspirational goal or a contract-specific subcontracting goal. Annual aspirational goals are inapplicable to individual contracts, but are intended to serve as a benchmark against which to measure the overall effectiveness of the MBE program in remedying discrimination against minority- and women-owned business enterprises in WSSC contracting opportunities for WSSC’s contracting areas. Additional information concerning establishing and implementing annual, aspirational goals and contract-specific subcontracting goals is found in Article III of this chapter.
(l) “Good faith efforts” means the actions taken by a bidder (or prime contractor post-award), as established by reliable documentation, to secure subcontracting participation of the eligible MBE required to meet the applicable subcontracting goal. Even if it fails to meet a subcontracting goal, a bidder (or prime contractor post-award) shall have the right to document adequate good faith efforts, in accordance with WSSC’s Good Faith Efforts Guide or successor, which includes (in summary):
(1) Demonstrating that it timely advertised in general circulation, trade association, and minority-focused media concerning the subcontracting opportunities;
(2) Submitting the names and addresses of each eligible MBE subcontractor the bidder contacted and referred, and the actions taken with respect to contracting, and the results of the contacts;
(3) Identifying actions taken to subdivide the work in order to enhance the potential to subcontract with eligible MBEs;
(4) Submitting a copy of information about the plans, specifications, and requirements of the contract provided to each interested eligible MBE contacted;
(5) Demonstrating that no interested eligible MBE was rejected without a valid reason (e.g., failure to submit reasonable price quote or to demonstrate qualifications, inability to provide needed good or service);
(6) Attempting to assist interested eligible MBEs in obtaining bonding or insurance; or
(7) Attempting to use minority community organizations; minority business and contractor’s groups; local, state and federal MBE development organizations; and other organizations that provide assistance in placing eligible MBEs.
(m) “Good Faith Efforts Guide” means a document used during the solicitation process that describes in detail the enumerated good faith efforts criteria that prime contractors must employ pre- and post-award to ensure the full and fair participation of certified eligible MBEs or WSSC-approved SLBEs. It details the process by which a prime contractor may request full and partial waiver of MBE or WSSC-approved SLBE subcontracting goals.
(1) “Goods” means all supplies, equipment, materials, and tangible personal property.
(2) “Goods” includes treatment plant parts and supplies, water meters, fire hydrants, valves, office supplies and equipment, vehicles and other materials.
(3) “Goods” does not include real property.
(o) “Graduation” means when a MBE firm meets the criteria for graduation as set forth in Article IV of this chapter. A MBE firm that graduates from the MBE program is no longer eligible to participate in the race- and gender-conscious remedies described in this chapter, but may participate in race- and gender-neutral remedies.
(p) “Industry categories” means procurement groupings for WSSC, inclusive of architectural and engineering, construction, goods and services, and professional services (i.e., manufacturing, wholesale and retail distribution of commodities and nonprofessional services). Industry categories are also referred to as “contracting areas.”
(q) “Invitation for bids (IFB)” means a method of soliciting sealed bids which are awarded to the lowest, responsible, and responsive bidder(s) generally opened publicly at a fixed date and time and read out loud in the presence of one or more witnesses.
(r) “Joint venture” means an association of two or more persons or businesses carrying out a single business enterprise for which purpose they combine their capital, efforts, skills, knowledge or property. Joint ventures must be established by written agreement, and prior to submission of a bid, validated by the OSDI.
(s) “MBE contract-specific subcontracting goals” means a race- or gender-conscious remedy in which prime contractors or vendors are required to make good faith efforts to subcontract a minimum percentage of the value of prime contract dollars to certified eligible MBEs. Such subcontracting goals shall be determined in accordance with the policies and procedures set forth in this chapter.
(1) “Minority business enterprise or MBE” means any legal entity, except a joint venture, that is organized to engage in commercial transactions, which is certified as being at least 51 percent owned, managed, and controlled by one or more socially and economically disadvantaged minority or woman individuals as defined in the State Finance and Procurement Article, § 14-301, Annotated Code of Maryland, and that is ready, willing, and able to sell goods or services that are purchased by the WSSC.
(2) “Minority business enterprise” includes, unless otherwise stated, women-owned business enterprises (WBEs), and disadvantaged business enterprises (DBEs) that are certified in accordance with state law and regulations.
(u) “North American Industry Classification System (NAICS)” means the six-digit code standard used by federal statistical agencies in classifying business establishments by the type of goods or services a firm provides.
(v) “Notice to proceed (NTP)” means a communication from WSSC to a contractor stating the date the contractor can begin work subject to the contract conditions.
(w) “Office of Supplier Diversity and Inclusion Director (OSDI Director)” means the WSSC personnel who is responsible for the management of the OSDI, and ultimately responsible for oversight, tracking, monitoring, administration, and implementation of the MBE and SLBE programs, including but not limited to this chapter (formerly the Small, Local and Minority Business Enterprise (SLMBE) Director).
(x) “Office of Supplier Diversity and Inclusion (OSDI)” means the office within the Commission that is primarily responsible for implementing and administering the MBE and SLBE programs (formerly the Small, Local and Minority Business Enterprise (SLMBE) Office).
(y) “Optimization of diverse business development program (ODBDP)” means an affirmative procurement initiative designed to identify a portion of WSSC procurements and contracts for bidding exclusively by MBEs or WSSC-approved SLBEs to facilitate their competitive development (formerly “sheltered market program”).
(z) “Points” means the quantitative assignment of value for specific evaluation criteria in the contractor selection process pursuant to a request for proposal, request for qualification or multi-step invitation bid selection method.
(aa) “Prime contractor” means the vendor or contractor to whom a purchase order or contract is issued by the WSSC for purposes of providing goods or services for the WSSC.
(bb) “Professional services” means services provided by skilled professionals other than architectural and engineering. Such services include without limitation: IT consulting, management consulting, legal and accounting.
(cc) “Race- and gender-conscious remedy” means a race- and gender-conscious measure that is used in addition to a race- and gender-neutral measure described herein or in WSSC Chapter 6.35 (or any successor SP thereto).
(dd) “Race- and gender-neutral remedy” means to open procurement opportunities in general, or specifically to small or newly formed firms, are collectively described as “race- and gender-neutral” programs. Neutral programs also include bonding assistance and small business lending programs.
(ee) “Request for bid/quotation” means an informal solicitation where oral or written quotes are obtained from vendors, without formal advertising or receipt of sealed bids.
(ff) “Request for proposals (RFP)” means all documents utilized by WSSC for soliciting proposals. This competitive selection method is used for procurements where the Commission has determined that price should not be the sole determinant when procuring specified types of supplies, services or construction. Proposals submitted in response to a RFP are analyzed and ranked based on evaluation factors and their corresponding relative weights, as stated in the RFP. For architectural and engineering (A&E) contracts (and some professional service contracts), WSSC may use a process that begins with publication of an announcement indicating the Commission’s intention to retain an A&E consultant and requesting interested firms to submit a statement of their qualifications for the proposed project. (This announcement is hereinafter referred to as a “request for qualifications.”)
(gg) “Responsible” means a firm is capable in all respects to fully perform the contract requirements and has the integrity and reliability which will assure good faith performance.
(hh) “Responsive” means a firm’s bid or proposal conforms in all material respects to the invitation to bid or request for proposal and shall include compliance with MBE and SLBE program requirements.
(ii) “Services” means the furnishing of labor, time, or effort not involving the delivery of a tangible material product other than reports which are merely incidental to the required performance. This term excludes employment agreements and collective bargaining agreements, but includes consulting, professional, technical, and advisory services.
(jj) “SLBE/MBE subcontracting and supplier certification (SLBE/MBE subcontracting plan)” means the subcontracting plan that identifies how the prime contractor intends to comply with the MBE or WSSC-approved SLBE subcontracting participation requirements of the contract.
(kk) “Small local business enterprise (SLBE)” means a firm that is approved by the OSDI based on the eligibility requirements as set forth in WSSC Chapter 6.35 (or its successor SP). Also known as a WSSC-approved SLBE.
(ll) “Standard procedure” refers to the standard procedure codified in this chapter or WSSC Chapter 6.35 (or any successor SP, except where another WSSC standard procedure is expressly indicated). The terms “policy,” “MBE policy,” “MBE program,” “SLBE policy” “SLBE program,” and “SLBE or MBE program” are used synonymously with “SP” herein.
(mm) “Subcontractor or sub-consultant” means any vendor or contractor that is providing goods or services to a prime contractor in furtherance of the prime contractor’s performance under a contract or purchase order with WSSC.
(nn) “Waiver” means an exclusion from the provisions of the MBE or SLBE program requirements granted by the Commission.
(oo) “Women-owned business enterprise” or “WBE” means any legal entity, except a joint venture, that is organized to engage in commercial transactions and that is certified as being at least 51 percent owned, managed and controlled by a female(s).
(pp) “WSSC” or the “Commission” means the Washington Suburban Sanitary Commission.
(qq) “WSSC relevant market area or geographical market area” means the geographical area consisting of the counties and municipalities where firms that have been awarded the substantial majority of WSSC contract dollars are located according to the most recent disparity study.
(rr) “WSSC Supplier Portal System” (supplanted Centralized Bidder Registration (CBR) System on November 9, 2015) means a mandatory automated web-based system wherein the Commission requires all prospective bidders, contractors, vendors, and subcontractors that are ready, willing, and able to sell goods or services to the Commission to register online in accordance with WSSC Chapter 6.05. All prime contractors and their direct subcontractor(s) on WSSC-funded contracts must be registered in the Supplier Portal. Failure to do so will delay the issuance of the notice to proceed for WSSC-funded contracts.
(ss) “WSSC Web-Based Compliance System” means the web-based software application used by WSSC to track and monitor subcontractor availability and utilization (i.e., “Spend” or “Payments”) on WSSC-funded contracts. This system is used to report and monitor prime contractors’ compliance with WSSC’s MBE or SLBE subcontracting requirements.