HomeMy WebLinkAboutS1- City Attorney CITY OF SAN BERN. ;DINO - REQUEST FL A COUNCIL ACTION
From: Richard J. Morillo Subject: Resolution Of the City Of San Bernardino
Adopting A Policy Relating To Minority Business
Dept: CITY ATTORNEY Enterprises, Wcmen Business Enterprises And Other
Date: November 16 , 1995 Business Enterprises In City Procurements
Synopsis of Previous Council action:
On November 1 , 1993 , Mayor and Council adopted Resolution
No . 93-411 . On November 13 , 1995 , Mayor and Council approved
settlement of action entitled Bonadiman-McCain, Inc . , a California
Corporation; and William W Bonadiman, individually vs City of
San Bernardino, a governmental entity; the Common Council of the
City of San Bernardino, and Does 1-20, San Bernardino Superior
Court Case No . SCV 25155
Recommended motion:
Adopt resolution.
Signature
Richard
a�q Morillo
Contact person: Richard J. Morillo Phone: 5355
Supporting data attached: Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct. No.)
(Acct. Description)
Finance:
Council Notes:
STAFF REPORT
In November. 1993, the Mayor and Council adopted Resolution No.93-411, establishing
goals for minority and women business enterprises in city public works projects and other
contracts. That program generally requires that a contractor meet specified goals for MBE/WBE
participation, or submit evidence of its "good faith efforts" to secure such participation.
1
On September 18, 1995, the Mayor and Council awarded a contract for sewer and storm
I drain work on "I" Street, between Mill and the Santa Fe Yard, to Utah-Pacific Construction.
Utah-Pacific's bid was $999.888.00. B onadiman-Mc Cain, Inc., submitted a bid of$987,161.50,
but was eliminated from consideration as a"non-responsive" bidder due to its failure to comply
I with the City's MBE/WBE Program. Bonadiman-McCain, represented by the Pacific Legal
Foundation, a conservative public interest law firm, challenged the award of the contract to Utah-
Pacific on grounds that the MBE/WBE Program is unconstitutional.
Since 1993, two key court decisions have cast doubt on the kind of"goals" oriented
program reflected in the City's policy. First, the California Supreme Court, in Domar Electric v.
City of Los Angeles, upheld an "outreach"program designed to insure that bidders on public
works projects refrain from discrimination in the selection of sub-contractors, but does away with
numerical participation goals. Secondly, the U.S. Supreme Court, in Adarand Constructors v
Pena, continued to follow its earlier decision in Croson v. City of Richmond, requiring "strict
scrutiny" of a city's reasons for imposing set-aside goals based on factors of race or gender.
On November 13, 1995, the Mayor and Council approved a settlement of the Bonadiman
litigation. One term of the settlement calls for changing the present policy to conform to the Los
Angeles program approved in Domar Electric. The attached resolution would adopt a policy
consistent with this commitment.
As discussed with the Mayor and Council in closed session on November 13th, the Los
Angeles program requires that bidders solicit sub-bids from a broad spectrum of potential
subcontractors (MBEs and WBEs included), and allows rejection of a bidder who fails to do so
of who rejects a competitive quote from a MBE or WBE without justification. A by-product of
this approach,noted by the_-Supreme Court in Domar Electric, is the promotion of competition
among subcontractors, which the Court characterized as an enhancement to the concept of
competitive bidding. Further, because the program is race-and gender-neutral, its adoption need
not be preceded by a costly and time-consuming "disparity study." In the absence of such a
study justifying a"goals"oriented program, we believe adoption of a policy conforming to Los
Angeles' is the best approach to take.
We therefore recommend adoption of the attached resolution.
1 JAMES F. PENMAN City Attorney
State Bar #91761
2 RICHARD J. NIORILLO, Sr. Assistant City Attorney
State Bar #82435
3 300 North "D" Street
San Bernardino, CA 92418
4 Telephone: (909) 384-5355
5 Attorney for Defendants
CITY OF SAN BERNARDINO
6 and COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SAN BERNARDINO
11
12 BONADIMAN-MCCAIN, INC., a ) Case No. SCV 25155
California Corporation; and WILLIAM )
13 W. BONADIMAN, individually )
14 Plaintiffs, )
15 vs. ) JUDGMENT ON STIPULATION
16 CITY OF SAN BERNARDINO a FOR JUDGMENT
governmental entity; the COMMON )
17 COUNCIL OF THE CITY OF )
18
SAN BERNARDINO, and DOES 1-20, )
)
19
Defendants. )
�
20 Pursuant to the-Stipulation for Judgment of the parties on file herein, the above-entitled court
21 ordered that the following judgment be entered in the above-entitled cause:
22 IT IS ORDERED, ADJUDGED AND DECREED that: I
23 1. Amendment of MBE Program, Defendants shall repeal their Minority
24 and Women Business Enterprise Program. Defendants shall enact a new program to conform to
25 Executive Directive No. 1-C promulgated by the Office of the Mayor of the City of Los Angeles,
26 dated March 6, 1989, as approved by the California Supreme Court in the case of Domar Electric,
27 Inc. v City of Los Angeles, 9 Cal. 4th 161, 36 Cal Rptr. 2d 521 (1994), except that paragraph (1)
28 on page 2 of said directive, pertaining to participation goals for minority- and women-owned
(rjm:bonadinu.jdd 1
I businesses, and any corresponding language elsewhere in the directive, shall be omitted.
2 2. Completion of the Project Defendants shall have no obligation to award the
3 bid for the project known as Phase I of the Northwest Intercepting Sewer and Storm Drain in "I"
4 Street from Mill Street to Santa Fe "A" Yard per Plan Nos. 9169 and 9169-A to Plaintiffs and may
5 complete the Project pursuant to the bid awarded to Utah-Pacific Construction on or about
6 September 18, 1995.
7 3. -Costs and Attorneys Fees City shall pay, in the manner directed by Plaintiffs'
8 attorneys of record in the Action, fees and costs incurred by Plaintiffs in bringing the Action in the
9 amount of Three Thousand Dollars ($3,000.00). Payment shall be due upon entry of judgment or
10 stipulation for judgment.
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12 Dated: �t1�1 8 1199b CARK E. DAVIS
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