Understanding Good Faith Efforts in Contract Evaluation by Tim Bullivant
Tips provided by Tim Bullivant, Contract Evaluation Branch Manager at Caltrans, Office of Business and Economic Opportunity, on evaluating good faith efforts for federal contracts with Disadvantaged Business Enterprises (DBEs) under 49 CFR 26.53(a). The guidelines outline criteria for determining if bidders have made sufficient good faith efforts to meet DBE contract goals, covering areas like DBE commitment documents, solicitation efforts, rejected DBEs, and other bidders' commitments.
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Tips for Evaluating Good Faith Efforts Tim Bullivant Contract Evaluation Branch Manager Caltrans Office of Business and Economic Opportunity
Contract Award Award contract to lowest responsive bidder
49 CFR 26.53 (a) When you have established a DBE contract goal, you must award the contract only to a bidder/offeror who makes good faith efforts to meet it. You must determine that a bidder/offeror has made good faith efforts if the bidder/offeror does either of the following things: (1) Documents that it has obtained enough DBE participation to meet the goal; or (2) Documents that it made adequate good faith efforts to meet the goal, even though it did not succeed in obtaining enough DBE participation to do so. If the bidder does document adequate good faith efforts, you must not deny award of the contract on the basis of that bidder failed to meet the goal. See Appendix A of this part for guidance in determining the adequacy of a bidder s good faith efforts.
Appendix A to Part 26 Guidance Concerning Good Faith Efforts is in 49 CFR part 26, Appendix A. To view the regulation go to: https://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/dbe- regulations
49 CFR Appendix A: The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements.
Elements of a GFE Evaluation 1. DBE commitment 2. Work made available to DBE firms 3. Solicitation effort documentation a) Advertisements for DBE participation b) Initial search efforts c) Follow-up solicitation efforts d) Interest from DBEs to meet the goal e) Offers of Assistance (bonding, plans, specs) 4. Rejected DBEs 5. Other Bidders a) DBE Commitments b) Good Faith Efforts
1. DBE Commitment The Closer the Bidder is to meeting the Goal, the less scrutiny is applied to their good faith efforts. If the bidder is within 1% of meeting the goal, a brief review of good faith efforts may be sufficient. When the DBE commitment is significantly below the goal, a fuller review is expected.
2. Work Made Available to DBEs A minimum of 30 percent of the contract must be performed by the Prime Contractor. Check work made available on advertisements and solicitations to calculate the dollar amount made available to DBEs. Are there interested DBE contractors, located in the Caltrans District of the project, certified to perform the work made available by bidder? Check California Unified Certification Program DBE Database (CUCP).
2. Work Made Available Is this a Good Faith Effort? Bidder performs work No % of Total Bid 0.4% Items of Work Consultant Non-Engineering C8700 Bid Amount $2,750.00 Traffic Engineer C8703 No $7,300.00 1.0% Engineering C8710 No $25,474.00 3.5% Consultant, Environmental C8713 No $47,612.00 7.0% Total DBE commitment: 0.00% Contract DBE: 7.0% Total work made available: 11.9% > 7.0% Like to see more work made available by bidder!
3. Solicitations 1. Did bidder contact those interested in the work? 2. Did the bidder use the CUCP website? 3. If the bidder is not receiving enough DBE responses, are they continuing to solicit DBEs? Did they solicit all DBE subcontractors in the area of the work? 4. Did the bidder allow sufficient time for the DBE to respond? 5. Prior to the bid opening, did the bidder have enough interest from DBEs to meet the contract goal? 6. Did the bidder adequately document the aforementioned?
3. Solicitations Is this a good faith effort? Type of Work Number of DBEs In Area? Number of DBEs Solicited None Consultant, Non- Engineering 55 Did not check Traffic Engineer 5 2 None Engineering 5 3 1 Consultant, Environmental 5 4 2 Total bid = $659,000
4. Rejected DBE documentation Did bidder provide name of DBEs who provided quotes on job? Was it documented? Did bidder provide reason for rejecting a DBE s quote? If rejected for price, was the price difference excessive or unreasonable? Did the bidder reject a DBE as unqualified without giving reasons?
5. Other Bidders Commitments The reviewer must take into account the performance of all other bidders. See 49 CFR part 26, Appendix A, V. When the apparent low bidder fails to meet the contract goal, but the others meet it, you may reasonably raise the question of whether, with additional efforts, the apparent low bidder could have met the goal. Verify the commitments (certified as a DBE to perform the listed work, proper DBE credit given, DBE verifies commitment, DBE has sufficient forces to perform the work). Consider the commitment of another bidder even if they are non-responsive.
5. Other Bidders Commitments Which Bidder has a problem? Contract 1 Goal: 10% Low bidder: 2% commitment 2ndlow: 10%; 3rdlow: 8% Contract 2 Goal: 10% Low bidder: 9% commitment 2ndlow: 10%; 3rdlow: 8%
Determination (1 of 4) Your Final Determination should consider the following factors: All necessary and reasonable steps to meet the DBE contract goal. 49 CFR 26 Appendix A(I) Quality, quantity, and intensity of efforts to meet the DBE contract goal. 49 CFR 26 Appendix A(II) Actively and aggressively trying to meet the DBE contract goal. 49 CFR 26 Appendix A(II)
Determination (2 of 4) Do not use a checklist Do not use a point system GFE reviews are based upon qualitative analysis of the documentation provided by the Prime Contractor.
Determination (3 of 4) How to Not Get Sued Be able to explain how you evaluate GFE Process Document your Processes and Procedures Can you explain your determination if it went to court?
Administrative Reconsideration If a GFE has been found to be inadequate and the award to the bidder has been rejected, the bidder/offeror must have an opportunity to meet in person with your reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. 49 CFR 26.53(d)(3)
Resources https://www.transportation.gov/osdbu/disadvantaged-business-enterprise/official- faqs-dbe-program-49-cfr-23 (FTA Regulations) https://www.ecfr.gov/cgi- bin/retrieveECFR?gp=1&SID=8d49c535a1608c98d3e13fe938e0200f&ty=HTML&h=L &r=PART&n=pt49.1.26#se49.1.26_155 (49 CFR 26.55 How is DBE participation counted toward goals?) http://www.dot.ca.gov/hq/bep/find_certified.htm (CUCP DBE Database) https://www.census.gov/cgi-bin/sssd/naics/naicsrch (North American Industry Classification System [NAICS] code lookup)
