QF-ACR-4 DBE-21-Sample DBE Program Template V3.0

HAYWARD EXECUTIVE AIRPORT

DISADVANTAGE BUSINESS

ENTERPRISE PLAN

U.S. DEPARTMENT OF TRANSPORTATION

DBE PROGRAM – 49 CFR PART 26

Prepared for:

Prepared by:

Revision Date: 2024-06-07

POLICY STATEMENT

Section 26.1, 26.23 Objectives/Policy Statement

Hayward Executive Airport has established a Disadvantaged Business Enterprise (DBE)

Program in accordance with regulations of the U.S. Department of Transportation

(DOT), 49 CFR Part 26. Hayward Executive Airport has received Federal financial

assistance from the Department of Transportation, and as a condition of receiving this

assistance, Hayward Executive Airport has signed an assurance that it will comply with

49 CFR Part 26 (hereafter referred to as “Part 26”).

It is the policy of Hayward Executive Airport to ensure that DBEs as defined in Part 26,

have an equal opportunity to receive and participate in DOT–assisted contracts. It is

also Hayward Executive Airport policy to engage in the following actions on a continuing

basis:

1. Ensure nondiscrimination in the award and administration of DOT- assisted

contracts;

2. Create a level playing field on which DBEs can compete fairly for DOT-

assisted contracts;

3. Ensure that the DBE Program is narrowly tailored in accordance with

applicable law;

4. Ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are

permitted to participate as DBEs;

5. Help remove barriers to the participation of DBEs in DOT assisted contracts;

6. Promote the use of DBEs in all types of federally-assisted contracts and

procurement activities;

7. Assist the development of firms that can compete successfully in the market

place outside the DBE Program; and

8. Make appropriate use of the flexibility afforded to recipients of Federal

financial assistance in establishing and providing opportunities for DBEs.

Douglas McNeeley, Airport Manager, has been delegated as the DBE Liaison Officer. In

that capacity, Mr. McNeeley is responsible for implementing all aspects of the DBE

program. Implementation of the DBE program is accorded the same priority as

compliance with all other legal obligations incurred by Hayward Executive Airport in its

financial assistance agreements with the Department of Transportation.

Hayward Executive Airport has disseminated this policy statement to the FAA and all of

the components of our organization. This statement has been distributed to DBE and

non-DBE business communities that may perform work on the Hayward Executive

Airport DOT-assisted contracts. The distribution was accomplished by posting to the

Hayward Executive Airport official website.

____________________________________________ __________________

Date

Revision Date: 2024-06-07

GENERAL REQUIREMENTS

Section 26.1 Objectives

The objectives are elaborated in the policy statement on the first page of this program.

Section 26.3 Applicability

Hayward Executive Airport is the recipient of Federal airport funds authorized by 49

U.S.C. 47101, et seq.

Section 26.5 Definitions

Hayward Executive Airport will use terms in this program that have their meanings

defined in Part 26, § 26.5.

Section 26.7 Non-discrimination Requirements

Hayward Executive Airport will never exclude any person from participation in, deny any

person the benefits of, or otherwise discriminate against anyone in connection with the

award and performance of any contract covered by 49 CFR Part 26 on the basis of

race, color, sex, or national origin.

In administering its DBE program, Hayward Executive Airport will not, directly or through

contractual or other arrangements, use criteria or methods of administration that have

the effect of defeating or substantially impairing accomplishment of the objectives of the

DBE program with respect to individuals of a particular race, color, sex, or national

origin.

Section 26.11 Data Collection and Reporting Requirements

Hayward Executive Airport will provide data about its DBE Program to the Department

as directed by DOT and its operating administrations.

DBE participation will be reported to the Federal Aviation Administration (FAA) as

follows:

Hayward Executive Airport will transmit to FAA annually, by or before December 1,

the information required for the “Uniform Report of DBE Awards or Commitments

and Payments”, as described in Part 26. Hayward Executive Airport will similarly

report the required information about participating DBE firms. All reporting for this

purpose will be done through the FAA’s designated reporting system.

Revision Date: 2024-06-07

Bidders List

The City of Hayward’s Public Works does not maintain a Bidder’s list. When a project is

advertised through Bidnet Direct, the work categories are selected and the appropriate

contractors and plan rooms are notified. Hayward Executive Airport does not include

resource listing for locating DBE contractors.

Section 26.13 Assurances Recipients and Contractors Must Make

Hayward Executive Airport has signed the following assurances, applicable to all DOT-

assisted contracts and their administration:

Assurance: - Each financial assistance agreement the Hayward Executive Airport signs

with a DOT operating administration (or a primary recipient) will include the following

assurance:

Hayward Executive Airport shall not discriminate on the basis of race, color,

national origin, or sex in the award and performance of any DOT-assisted

contract or in the administration of its DBE program or the requirements of 49

CFR Part 26. Hayward Executive Airport shall take all necessary and reasonable

steps under 49 CFR Part 26 to ensure nondiscrimination in the award and

administration of DOT-assisted contracts. Hayward Executive Airport DBE

program, as required by 49 CFR Part 26 and as approved by DOT, is

incorporated by reference in this agreement. Implementation of this program is a

legal obligation and failure to carry out its terms shall be treated as a violation of

this agreement. Upon notification to Hayward Executive Airport of its failure to

carry out its approved program, the Department may impose sanctions as

provided for under 49 CFR Part 26 and may, in appropriate cases, refer the

matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil

Remedies Act of 1986 (31 U.S.C. 3801 et seq.).

Contract Assurance: Hayward Executive Airport will ensure that the following clause is

included in each DOT-funded contract it signs with a contractor (and each subcontract

the prime contractor signs with a subcontractor):

The contractor, sub recipient or subcontractor shall not discriminate on the basis of

race, color, national origin, or sex in the performance of this contract. The contractor

shall carry out applicable requirements of 49 CFR part 26 in the award and

administration of DOT-assisted contracts. Failure by the contractor to carry out these

requirements is a material breach of this contract, which may result in the termination of

this contract or such other remedy as the recipient deems appropriate, which may

include, but is not limited to:

1) Withholding monthly progress payments;

2) Assessing sanctions;

3) Liquidated damages; and/or

4) Disqualifying the contractor from future bidding as non-responsible.

Revision Date: 2024-06-07

ADMINISTRATIVE REQUIREMENTS

Section 26.21 DBE Program Updates

Hayward Executive Airport is required to have a DBE program meeting the

requirements of this part as it will receive grants for airport planning or development and

will award prime contracts, cumulative total value of which exceeds $250,000 in FAA

funds in a federal fiscal year.

Hayward Executive Airport is not eligible to receive DOT financial assistance unless

DOT has approved this DBE program and Hayward Executive Airport is in compliance

with it and Part 26. Hayward Executive Airport will continue to carry out this program

until all funds from DOT financial assistance have been expended. Hayward Executive

Airport does not have to submit regular updates of the DBE program document, as long

as it remains in compliance. However, significant changes in the program, including

those required by regulatory updates, will be submitted to the relevant operating

administration for approval.

Section 26.23 Policy Statement

The Policy Statement is elaborated on the first page of this DBE Program.

Section 26.25 DBE Liaison Officer (DBELO)

The following individual has been designated as the DBE Liaison Officer for the

Hayward Executive Airport:

Douglas McNeeley

Airport Manager

20301 Skywest Drive

Hayward, CA, 94541

510-293-5462

hayward.airport@hayward-ca.gov

In that capacity, the DBELO is responsible for implementing all aspects of the DBE

program and ensuring that Hayward Executive Airport complies with all provision of 49

CFR Part 26. The DBELO has direct, independent access to the City Manager

concerning DBE program matters. An organizational chart displaying the DBELO’s

position in the organization is included in Attachment 2 to this program.

The DBELO is responsible for developing, implementing, and monitoring the DBE

program, in coordination with other appropriate officials. The DBELO has a staff to

assist in the administration of the program. The duties and responsibilities include the

following:

Revision Date: 2024-06-07

1. Gathers and reports statistical data and other information as required by

DOT.

2. Reviews third party contracts and purchase requisitions for compliance with

this program.

3. Ensures that bid notices and requests for proposals are available to DBEs in

a timely manner.

Section 26.27 DBE Financial Institutions

Hayward Executive Airport encourages prime contractors on DOT-assisted contracts to

make use of financial institutions owned and controlled by socially and economically

disadvantaged individuals in the community.

Section 26.29 Prompt Payment Mechanisms

Hayward Executive Airport requires that all subcontractors performing work on DOT-

assisted contracts shall be promptly paid for work performed pursuant to their

agreements, in accordance with all relevant federal, state, and local law. Prompt

payment and return of retainage requirements also apply to lower-tier subcontractors.

In accordance with 49 CFR § 26.29, Hayward Executive Airport established a contract

clause implementing this requirement and requires prime contractors to pay

subcontractors for satisfactory performance of their contracts no later than 30 days from

the prime contractor’s receipt of each payment from Hayward Executive Airport.

Hayward Executive Airport ensures prompt and full payment of retainage from the prime

contractor to the subcontractor within 30 days after the subcontractor's work is

satisfactorily completed. Pursuant to § 26.29, Hayward Executive Airport has selected

the following method to comply with this requirement:

Hayward Executive Airport may hold retainage from prime contractors and provide for

prompt and regular incremental acceptances of portions of the prime contract, pay

retainage to prime contractors based on these acceptances, and require a contract

clause obligating the prime contractor to pay all retainage owed to the subcontractor for

satisfactory completion of the accepted work within 30 days after your payment to the

prime contractor.

For every airport construction project funded under Federal grant assistance

programs, Hayward Executive Airport includes the applicable clause from FAA

Advisory Circular 150/5370-10 (Section 90-06) pertaining to the selected

retainage method. The applicable clause will be included verbatim. However, if

state or local prompt payment laws provide for payment in less than 30 days, any

reference to “30 days” will be revised accordingly.

The Owner may decline to hold retainage from prime Contractors and require a

contract clause obligating prime Contractors to make prompt and full payment of

Revision Date: 2024-06-07

any retainage kept by prime Contractor to the subcontractor within 30 days after

the subcontractor’s work is satisfactorily completed.

a. No retainage will be held by the Owner from progress payments due the

prime.

b. The Contractor is required to pay all subcontractors for satisfactory

performance of their contracts no later than 30 days after the Contractor

has received a partial payment. Contractor must provide the Owner

evidence of prompt and full payment of retainage held by the prime

Contractor to the subcontractor within 30 days after the subcontractor’s

work is satisfactorily completed. A subcontractor’s work is satisfactorily

completed when all the tasks called for in the subcontract have been

accomplished and documented as required by the Owner. When the

Owner has made an incremental acceptance of a portion of a prime

contract, the work of a subcontractor covered by that acceptance is

deemed to be satisfactorily completed.

c. When at least 95% of the project work has been completed to the

satisfaction of the RPR, the RPR shall, at the Owner’s discretion and with

the consent of the surety, prepare estimates of both the contract value and

the cost of the remaining work to be done.

Hayward Executive Airport requires prime contractors to maintain records and

documents of payments to subcontractors, including DBEs, for a minimum of three (3)

years unless otherwise provided by applicable record retention requirements for the

Hayward Executive Airport’s financial assistance agreement, whichever is longer.

These records will be made available for inspection upon request by any authorized

representative of Hayward Executive Airport or DOT. This reporting requirement

extends to all subcontractors, both DBE and non-DBE.

• Hayward Executive Airport proactively reviews contract payments to

subcontractors including DBEs monthly for active projects. Payment reviews will

evaluate whether the actual amount paid to DBE subcontractors is equivalent to

the amounts reported to Hayward Executive Airport by the prime contractor.

Prompt Payment Dispute Resolution

Hayward Executive Airport will take the following steps to resolve disputes as to

whether timely prompt payment and retainage releases are being made as required by

§ 26.29.

A contract clause, consistent with requirements of FAA Circular 150-5370-10H.

90-06, providing that the prime contractor will not be reimbursed for work

performed by subcontractors unless and until the prime contractor ensures that

the subcontractors are promptly paid for the work they have performed.

Prompt Payment Complaints

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Complaints by subcontractors regarding the prompt payment requirements are handled

according to the following procedure.

• If affected subcontractor is not comfortable contracting prime directly regarding

payment or unable to resolve payment discrepancies with prime, subcontractor

should contact DBELO to initiate complaint.

• Pursuant to Sec. 157 of the FAA Reauthorization Act of 2018, all complaints

related to prompt payment will be reported in a format acceptable to the FAA,

including the nature and origin of the complaint and its resolution.

Enforcement Actions for Noncompliance of Participants

Hayward Executive Airport provides appropriate means to enforce the requirements of §

26.29. These means include:

o In accordance with the contract, assessing liquidated damages

against the prime contractor for each day beyond the required time

period the prime contractor fails to pay the subcontractor (per FAA

Circular 105-5370-10H.30-08.

o Pay subcontractors directly and deduct this amount from the

retainage owed to the prime;

o Issue a stop-work order until payments are released to

subcontractors, specifying in the contract that such orders

constitute unauthorized delays for the purposes of calculating

liquidated damages if milestones are not met.

Hayward Executive Airport will actively implement the enforcement actions detailed

above.

Section 26.31 Directory of Certified Firms

Hayward Executive Airport is a non-certifying member of the California Unified

Certification Program (UCP). The UCP maintains a directory identifying all firms eligible

to participate as DBEs and/or ACDBEs, and it contains all the elements required by

§26.31. The directory lists all firms eligible to participate as a DBE and/or ACDBE in the

program. In the listing for each firm, the UCP directory includes the following details

about the firm:

• Business address

• Business phone number

• Firm website(s)

• The types of work the firm has been certified to perform as a DBE and/or

ACDBE.

• The type of work a DBE and/or ACDBE is eligible to perform is listed by using the

most specific NAICS code available to describe each type of work the firm

performs. Pursuant to § 26.81(n)(1) and (3), the UCP directory allows for NAICS

Revision Date: 2024-06-07

codes to be supplemented with specific descriptions of the type(s) of work the

firm performs.

• The UCP directory may include additional data fields of other items readily

verifiable in State or locally maintained databases, such as State licenses held,

Pre-qualifications, and Bonding capacity.

• The UCP directory is an online system that permits the public to search and/or

filter for DBEs by:

1. Physical location

2. NAICS code(s)

3. Work descriptions

4. All additional data fields of readily verifiable optional information described

above.

The directory includes a prominently displayed disclaimer that states the information

within the directory is not a guarantee of the DBE’s capacity and ability to perform work.

Section 26.33 Over-concentration

Hayward Executive Airport has not identified that over-concentration exists in the types

of work that DBEs perform.

Section 26.35 Business Development and Mentor-Protégé Programs

Hayward Executive Airport has not established a Business Development Program or a

Mentor-Protégé Program as described by 49 CFR Part 26.

Section 26.37 Monitoring Responsibilities

Hayward Executive Airport implements and carries out appropriate mechanisms to

ensure compliance with 49 CFR Part 26 program requirements by all program

participants, and describes and sets forth these mechanisms in this DBE program.

Hayward Executive Airport actively monitors attainment toward overall goals by

maintaining running tally that provides for a frequent comparison of cumulative DBE

awards/commitments to DOT-assisted prime contract awards to determine whether our

implementation of contract goals is projected to be sufficient to meet the annual goal.

The running tally for overall goal monitoring will be maintained by a running tally of

actual DBE attainments (e. g., payments actually made to DBE firms), including a

means of comparing these attainments to commitments. This mechanism to maintain a

running tally of overall goal attainment will be used to inform Hayward Executive Airport

decisions to implement goals on contracts to be advertised, according to our

established contract goal-setting process.

Hayward Executive Airport actively monitors participation with respect to each DBE

commitment by using a running tally that provides for a frequent comparison of

payments made to each listed DBE relative to the progress of work, including payments

Revision Date: 2024-06-07

for such work to the prime contractor. The running tally for contract goal monitoring will

be maintained by maintaining a running tally of actual DBE attainments (e.g., payments

actually made to DBE firms), including a means of comparing these attainments to

commitments. These contract-specific running tallies will be used to determine whether

the contractor is on track with meeting its DBE commitment and whether any projected

shortfall exists that requires the prime contractor’s good faith efforts to address to meet

the contract goal pursuant to § 26.53(g).

Monitoring Contracts and Work Sites

Hayward Executive Airport reviews contracting records and engages in active

monitoring of work sites to ensure that work committed to DBEs at contract award or

subsequently (e.g., as the result of modification to the contract) is actually performed by

the DBEs to which the work was committed, and such work is counted according to the

requirements of § 26.55. Work site monitoring for counting and commercially useful

function review is performed by DBELO or their designee. Contracting records are

reviewed by DBELO. Hayward Executive Airport will maintain written certification that

contracting records have been reviewed and work sites have been monitored to ensure

the counting of each DBE's participation is consistent with its function on the contract.

Section 26.39 Fostering Small Business Participation

Hayward Executive Airport has created a Small Business element to structure

contracting requirements to facilitate competition by small business concerns, taking all

reasonable steps to eliminate obstacles to their participation, including unnecessary and

unjustified bundling of contract requirements that may preclude small business

participation in procurements as prime contractors or subcontractors.

The small business element is incorporated as Attachment 10 to this DBE Program.

The program elements will be actively implemented to foster small business

participation. Hayward Executive Airport acknowledges that implementation of the small

business element is required for us to be considered by DOT as implementing our DBE

program in good faith.

Revision Date: 2024-06-07

SUBPART C – GOALS, GOOD FAITH EFFORTS, AND COUNTING

Section 26.43 Set-asides or Quotas

Hayward Executive Airport does not use quotas or race-conscious set-asides in any

way in the administration of this DBE program.

Section 26.45 Overall Goals

Hayward Executive Airport will establish an overall DBE goal covering a three-year

federal fiscal year period if it anticipates awarding DOT-funded prime contracts the

cumulative total value of which exceeds $250,000 in DOT funds during any one or more

of the reporting fiscal years within the three-year goal period. In accordance with

§26.45(f), Hayward Executive Airport will submit its Overall Three-year DBE Goal to

FAA by August 1

of the year in which the goal is due, as required by the schedule

established by FAA.

The DBE goals will be established in accordance with the 2-step process as specified in

49 CFR Part 26.45. If the Hayward Executive Airport does not anticipate awarding

prime contracts the cumulative total value of which exceeds $250,000 in DOT funds

during any of the years within the three-year reporting period, an overall goal will not be

developed. However, this DBE Program will remain in effect and Hayward Executive

Airport will seek to fulfill the objectives outlined in 49 CFR Part 26.1.

Step 1. The first step is to determine a base figure for the relative availability of DBEs in

the market area. Hayward Executive Airport will use a DBE Directory information and

Census Bureau Data as a method to determine the base figure. Hayward Executive

Airport understands that the exclusive use of a list of prequalified contractors or plan

holders, or a bidders list that does not comply with the requirements of 49 CFR Part

26.45(c)(2), is not an acceptable alternative means of determining the availability of

DBEs.

Step 2. The second step is to adjust, if necessary, the “base figure” percentage from

Step 1 so that it reflects as accurately as possible the DBE participation the recipient

would expect in the absence of discrimination. Adjustments may be made based on

past participation, information from a disparity study (to the extent it is not already

accounted for in the base goal), and/or information about barriers to entry to past

competitiveness of DBEs on contracts. Hayward Executive Airport will examine all of

the evidence available in its jurisdiction to determine what adjustment, if any, is needed.

If the evidence does not suggest an adjustment is necessary, then no adjustment shall

be made.

Any methodology selected will be based on demonstrable evidence of local market

conditions and be designed to ultimately attain a goal that is rationally related to the

relative availability of DBEs in the Hayward Executive Airport market.

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In establishing the overall goal, Hayward Executive Airport will provide for consultation

and publication. This includes consultation with minority, women’s and general

contractor groups, community organizations, and other officials or organizations which

could be expected to have information concerning the availability of disadvantaged and

non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs,

and the efforts by Hayward Executive Airport to establish a level playing field for the

participation of DBEs. The consultation will include a scheduled, direct, interactive

exchange (e.g., a face-to-face meeting, video conference, teleconference) with as many

interested stakeholders as possible focused on obtaining information relevant to the

goal setting process, and it will occur before Hayward Executive Airport is required to

submit the goal methodology to the operating administration for review pursuant to

§26.45(f). The goal submission will document the consultation process in which

Hayward Executive Airport engaged. Notwithstanding paragraph (f)(4) of §26.45, the

proposed goal will not be implemented until this requirement is met.

In addition to the consultation described above, Hayward Executive Airport will publish a

notice announcing the proposed overall goal before submission to the FAA on August

1st. The notice will be posted on the Hayward Executive Airport official internet web site

and may be posted in other sources (e.g., minority-focused media, trade association

publications). If the proposed goal changes following review by FAA, the revised goal

will be posted on the Hayward Executive Airport official internet web site.

The public will also be informed that the proposed overall goal and its rationale are

available for inspection during normal business hours at the principal office of the

Hayward Executive Airport . This notice will provide that Hayward Executive Airport will

accept comments on the goals for 30 days from the date of the notice. Notice of the

comment period will include the addresses to which comments may be sent (including

offices and websites) and the location(s) where the proposed goal may be reviewed.

The public comment period will not extend the August 1

deadline.

The Overall Three-Year DBE Goal submission to FAA will include any information and

comments received, who provided the comment, and how Hayward Executive Airport

considered and responded to any comments and information received before finalizing

the goal.

Hayward Executive Airport will begin using the overall goal on October 1 of the relevant

period, unless other instructions from FAA have been received.

Project Goals

If permitted or required by the FAA, an overall goal may be expressed as a percentage

of funds for a particular grant or project or group of grants and/or projects, including

entire projects. Like other overall goals, a project goal may be adjusted to reflect

changed circumstances, with the concurrence of the appropriate operating

administration. A project goal is an overall goal, and it must meet all the substantive and

procedural requirements pertaining to overall goals. A project goal covers the entire

length of the project to which it applies. The project goal will include a projection of the

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DBE participation anticipated to be obtained during each fiscal year covered by the

project goal. The funds for the project to which the project goal pertains are separated

from the base from which the regular overall goal, applicable to contracts not part of the

project covered by a project goal, is calculated.

Prior Operating Administration Concurrence

Hayward Executive Airport understands that prior FAA concurrence with the overall goal

is not required. However, if the FAA review suggests that the overall goal has not been

correctly calculated or that the method employed by Hayward Executive Airport for

calculating goals is inadequate, FAA may, after consulting with Hayward Executive

Airport, adjust the overall goal or require that the goal be adjusted by the Hayward

Executive Airport. The adjusted overall goal is binding. In evaluating the adequacy or

soundness of the methodology used to derive the overall goal, the U.S. DOT operating

administration will be guided by the goal setting principles and best practices identified

by the Department in guidance issued pursuant to § 26.9.

A description of the methodology to calculate the overall goal and the goal calculations

can be found in Attachment 5 to this program.

Section 26.47 Failure to meet overall goals

Hayward Executive Airport cannot be penalized, or treated by the Department as being

in noncompliance with Part 26, because DBE participation falls short of an overall goal,

unless Hayward Executive Airport fails to administer its DBE program in good faith.

Hayward Executive Airport understands that to be considered to be in compliance with

this part, an approved DBE Program and overall DBE goal, if applicable, must be

maintained, and this DBE Program must be administered in good faith.

Hayward Executive Airport understands that if the awards and commitments shown on

the Uniform Report of Awards or Commitments and Payments at the end of any fiscal

year are less than the overall goal applicable to that fiscal year, the following actions

must be taken in order to be regarded by the Department as implementing this DBE

Program in good faith:

(1) Analyze in detail the reasons for the difference between the overall goal and

the awards and commitments in that fiscal year;

(2) Establish specific steps and milestones to correct the problems identified in the

analysis to enable the goal for the new fiscal year to be fully met;

(3) Hayward Executive Airport will prepare, within 90 days of the end of the fiscal

year, the analysis and corrective actions developed under paragraph (c)(1) and (2)

of this section. We will retain copy of analysis and corrective actions in records for

a minimum of three years, and will make it available to FAA upon request. p

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Section 26.51 Means Recipients Use to Meet Overall Goals

Breakout of Estimated Race-Neutral & Race-Conscious Participation

Hayward Executive Airport will meet the maximum feasible portion of its overall goal by

using race-neutral means of facilitating race-neutral DBE participation. Race-neutral

DBE participation includes any time a DBE wins a prime contract through customary

competitive procurement procedures or is awarded a subcontract on a prime contract

that does not carry a DBE contract goal.

Race-neutral means include, but are not limited to the following:

1. Arranging solicitations, times for the presentation of bids, quantities,

specifications, and delivery schedules in ways that facilitate participation

by DBEs and other small businesses and by making contracts more

accessible to small businesses, by means such as those provided under

§26.39.

2. Providing assistance in overcoming limitations such as inability to obtain

bonding or financing (e.g., by such means as simplifying the bonding

process, reducing bonding requirements, eliminating the impact of surety

costs from bids, and providing services to help DBEs, and other small

businesses, obtain bonding and financing);

3. Providing technical assistance and other services;

4. Carrying out information and communications programs on contracting

procedures and specific contract opportunities (e.g., ensuring the inclusion

of DBEs, and other small businesses, on recipient mailing lists for bidders;

ensuring the dissemination to bidders on prime contracts of lists of

potential subcontractors; provision of information in languages other than

English, where appropriate);

5. Implementing a supportive services program to develop and improve

immediate and long-term business management, record keeping, and

financial and accounting capability for DBEs and other small businesses;

6. Providing services to help DBEs, and other small businesses, improve

long-term development, increase opportunities to participate in a variety of

kinds of work, handle increasingly significant projects, and achieve

eventual self-sufficiency;

7. Establishing a program to assist new, start-up firms, particularly in fields in

which DBE participation has historically been low;

8. Ensuring distribution of the DBE directory, through print and electronic

means, to the widest feasible universe of potential prime contractors; and

9. Assisting DBEs, and other small businesses, to develop their capability to

utilize emerging technology and conduct business through electronic

media.

Revision Date: 2024-06-07

The breakout of estimated race-neutral and race-conscious participation can be found in

Attachment 5 to this program.

Hayward Executive Airport will arrange solicitations, times for the presentation of bids,

quantities, specifications, and delivery schedules in ways that facilitate participation by

DBEs and other small businesses and by making contracts more accessible to small

businesses, by means such as those provided under §26.39.

Contract Goals

If the approved projection under paragraph (c) of §26.51 estimates that the entire

overall goal for a given year can be met through race-neutral means, contract goals will

not be set during that year, unless the use of contract goals becomes necessary in

order meet the overall goal.

Contract goals will be established only on those DOT-assisted contracts that have

subcontracting possibilities. A contract goal need not be established on every such

contract, and the size of contract goals will be adapted to the circumstances of each

such contract (e.g., type and location of work, availability of DBEs to perform the

particular type of work).

Contract goals will be expressed as a percentage of the Federal share of a DOT-

assisted contract.

Section 26.53 Good Faith Efforts Procedures in Situations where there are

Contract Goals

Demonstration of good faith efforts (pre-award)

In cases where a contract goal has been established, the contract in question will only

be awarded to a bidder/offeror that has made good faith efforts to meet the contract

goal. The bidder/offeror can demonstrate that it has made good faith efforts by either

meeting the contract goal or documenting that it has made adequate good faith efforts

to do so. Examples of good faith efforts are found in Appendix A to Part 26.

Pamela Svrdlin, Airport Operations Supervisors is responsible for determining whether a

bidder/offeror who has not met the contract goal has documented sufficient good faith

efforts to be regarded as Responsive.

Hayward Executive Airport will ensure that all information is complete and accurate and

adequately documents the bidder/offeror’s good faith efforts before committing to the

performance of the contract by the bidder/offeror.

In all solicitations for DOT-assisted contracts for which a contract goal has been

established, the following information will be required of every bidder/offeror:

(1) Award of the contract will be conditioned on meeting the requirements of this

section;

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(2) All bidders or offerors will be required to submit the following information to

the recipient, at the time provided in paragraph (3) of this section:

a. The names and addresses of DBE firms that will participate in the

contract;

b. A description of the work that each DBE will perform. To count toward

meeting a goal, each DBE firm must be certified in a NAICS code

applicable to the kind of work the firm would perform on the contract;

c. The dollar amount of the participation of each DBE firm participating;

d. Written documentation of the bidder/offeror’s commitment to use a DBE

subcontractor whose participation it submits to meet a contract goal; and

e. Written confirmation from each listed DBE firm that it is participating in

the contract in the kind and amount of work provided in the prime

contractor’s commitment. Each DBE listed to perform work as a regular

dealer or distributor must confirm its participation according to the

requirements of § 26.53 (c)(1).

f. If the contract goal is not met, evidence of good faith efforts (as

elaborated in Appendix A of Part 26). The documentation of good faith

efforts must include copies of each DBE and non-DBE subcontractor

quote submitted to the bidder when a non-DBE subcontractor was

selected over a DBE for work on the contract;

(3) The bidder/offeror will be required to present the information stipulated in

paragraph (2) of this section:

a. Under sealed bid procedures, as a matter of responsiveness, or with

initial proposals, under contract negotiation procedures.

Provided that, in a negotiated procurement, such as a procurement for

professional services, the bidder/offeror may make a contractually binding

commitment to meet the goal at the time of bid submission or the presentation of

initial proposals but provide the information required by paragraph (b)(2) of this

section before the final selection for the contract is made by Hayward Executive

Airport . This paragraph (b)(3)(ii) does not apply to a design-build procurement,

which must follow the provisions in paragraph (e) of 49 CFR § 26.53.

For each DBE listed as a regular dealer or distributor the Hayward Executive

Airport will make a preliminary counting determination to assess its eligibility for

60 or 40 percent credit, respectively, of the cost of materials and supplies based

on its demonstrated capacity and intent to perform as a regular dealer or

distributor, as defined in §§ 26.55(e)(2)(iv)(A), (B), (C), and (3) under the contract

at issue. The preliminary determination will be made based on the DBE’s written

responses to relevant questions and its affirmation that its subsequent

performance of a commercially useful function will be consistent with the

preliminary counting of such participation. Where the DBE supplier does not

affirm that its participation will meet the specific requirements of either a regular

dealer or distributor, Hayward Executive Airport will make appropriate

adjustments in counting such participation toward the bidder’s good faith efforts

to meet the contract goal. The bidder is responsible for verifying that the

Revision Date: 2024-06-07

information provided by the DBE supplier is consistent with the counting of such

participation toward the contract goal.

In a design-build contracting situation, in which Hayward Executive Airport

solicits proposals to design and build a project with minimal project details at time

of letting, Hayward Executive Airport may set a DBE goal that proposers must

meet by submitting a DBE Open-Ended DBE Performance Plan (OEPP) with the

proposal. The OEPP replaces the requirement to provide the information

required in paragraph (b) of § 26.53(b). To be considered responsive, the OEPP

must include a commitment to meet the goal and provide details of the types of

subcontracting work or services (with projected dollar amounts) that the proposer

will solicit DBEs to perform. The OEPP must include an estimated time frame in

which actual DBE subcontracts would be executed. Once the design-build

contract is awarded, Hayward Executive Airport will provide ongoing monitoring

and oversight to evaluate whether the design-builder is using good faith efforts to

comply with the OEPP and schedule. Hayward Executive Airport and the design-

builder may agree to make written revisions of the OEPP throughout the life of

the project, e.g., replacing the type of work items the design-builder will solicit

DBEs to perform and/or adjusting the proposed schedule, as long as the design-

builder continues to use good faith efforts to meet the goal.

Hayward Executive Airport will apply the requirements of this section to DBE

bidders/offerors for prime contracts. In determining whether a DBE bidder/offeror

for a prime contract has met a contract goal, Hayward Executive Airport will

count the work the DBE has committed to performing with its own forces as well

as the work that it has committed to be performed by DBE subcontractors and

DBE suppliers.

Administrative Reconsideration of Good Faith Efforts determinations

Within 5 days of being informed by Hayward Executive Airport that it is not responsive

because it has not documented adequate good faith efforts, a bidder/offeror may

request administrative reconsideration. Bidder/offerors should make this request in

writing to the following reconsideration official: Pamela Svrdlin, Airport Operations

Supervisor at 510.293.5462 or pamela.svrdlin@hayward-ca.gov. The reconsideration

official will not have played any role in the original determination that the bidder/offeror

did not document sufficient good faith efforts.

As part of this reconsideration, the bidder/offeror will have the opportunity to provide

written documentation or argument concerning the issue of whether it met the goal or

made adequate good faith efforts to do so. The bidder/offeror will have the opportunity

to meet in person with the reconsideration official to discuss the issue of whether the

goal was met or the bidder/offeror made adequate good faith efforts to do. The

bidder/offeror will be sent a written decision on reconsideration, explaining the basis for

finding that the bidder did or did not meet the goal or make adequate good faith efforts

to do so. The result of the reconsideration process is not administratively appealable to

the Department of Transportation.

Revision Date: 2024-06-07

Good Faith Efforts procedural requirements (post-solicitation/award)

Hayward Executive Airport will include in each prime contract the contract clause

required by § 26.13(b) stating that failure by the contractor to carry out the requirements

of this part is a material breach of the contract and may result in the termination of the

contract or such other remedies set forth in that section that Hayward Executive Airport

deems appropriate if the prime contractor fails to comply with the requirements of this

section.

Hayward Executive Airport will require the awarded contractor to make available upon

request a copy of all DBE subcontracts. The contractor shall ensure that all

subcontracts or agreements with DBEs to supply labor or materials include all required

contract provisions and mandate that the subcontractor and all lower tier subcontractors

perform in accordance with the provisions of Part 26.

Hayward Executive Airport will require that a prime contractor not terminate a DBE or

any portion of its work listed in response to § 26.53(b)(2) (or an approved substitute

DBE firm per § 26.53(g)) without our prior written consent, unless Hayward Executive

Airport causes the termination or reduction. A termination includes any reduction or

underrun in work listed for a DBE not caused by a material change to the prime contract

by the recipient. This requirement applies to instances that include but are not limited to:

when a prime contractor seeks to perform work originally designed for a DBE

subcontractor with its own forces or those of an affiliate, a non-DBE firm, or with another

DBE firm.

Hayward Executive Airport will include in each prime contract a provision stating that:

(1) The contractor must utilize the specific DBEs listed to perform the work and

supply the materials for which each is listed unless the contractor obtains

Hayward Executive Airport’s written consent as provided in § 26.53(f); and

(2) Unless Hayward Executive Airport’s consent is provided under § 26.53(f), the

prime contractor must not be entitled to any payment for work or material unless

it is performed or supplied by the listed DBE.

Hayward Executive Airport may provide such written consent only if it agrees, for

reasons stated in our concurrence document, that the prime contractor has good cause

to terminate the listed DBE or any portion of its work.

Good cause does not exist if the prime contractor seeks to terminate a DBE or any

portion of its work that is relied upon to obtain the contract so that the prime contractor

can self-perform the work for which the DBE contractor was engaged, or so that he

prime contractor can substitute another DBE or non-DBE contractor after contract

award. For purposes of § 26.53(f)(3), good cause includes the following circumstances:

(1) The listed DBE subcontractor fails or refuses to execute a written contract;

(2) The listed DBE subcontractor fails or refuses to perform the work of its

subcontract in a way consistent with normal industry standards. Provided,

however, that good cause does not exist if the failure or refusal of the DBE

Revision Date: 2024-06-07

subcontractor to perform its work on the subcontract results from the bad faith or

discriminatory action of the prime contractor;

(3) The listed DBE subcontractor fails or refuses to meet the prime contractor’s

reasonable, nondiscriminatory bond requirements;

(4) The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit

worthiness;

(5) The listed DBE subcontractor is ineligible to work on public works projects

because of suspension and debarment proceedings pursuant to 2 CFR parts

180, 215, and 1200 or applicable state law;

(6) Hayward Executive Airport has determined that the listed DBE subcontractor is

not a responsible contractor;

(7) The listed DBE subcontractor voluntarily withdraws from the project and

provides to Hayward Executive Airport written notice of its withdrawal;

(8) The listed DBE is ineligible to receive DBE credit for the type of work required;

(9) A DBE owner dies or becomes disabled with the result that the listed DBE

contractor is unable to complete its work on the contract; and

(10) Other documented good cause that Hayward Executive Airport determines

compels the termination of the DBE subcontractor;

Before transmitting to Hayward Executive Airport the request to terminate a DBE

subcontractor or any portion of its work, the prime contractor must give notice in writing

to the DBE subcontractor, with a copy to Hayward Executive Airport sent concurrently,

of its intent to request to terminate and the reason for the proposed request.

The prime contractor’s written notice must give the DBE five (5) days to respond,

advising Hayward Executive Airport and the prime contractor of the reasons, if any, why

it objects to the proposed termination of its subcontract or portion thereof and why

Hayward Executive Airport should not approve the prime contractor’s request. If

required in a particular case as a matter of public necessity (e.g., safety), Hayward

Executive Airport may provide a response period shorter than five (5) days.

In addition to post-award terminations, the provisions of this section apply to pre-award

deletions or changes to DBEs or their listed work put forward by offerors in negotiated

procurements.

When a DBE subcontractor or a portion of its work is terminated by the prime contractor

as provided in § 26.53(f), or if work committed to a DBE is reduced due to

overestimations made prior to award, the prime contractor must use good faith efforts to

include additional DBE participation to the extent needed to meet the contract goal. The

good faith efforts shall be documented by the contractor. If Hayward Executive Airport

requests documentation under this provision, the contractor shall submit the

documentation within seven (7) days, which may be extended for an additional seven

(7) days, if necessary, at the request of the contractor. Hayward Executive Airport shall

provide a written determination to the contractor stating whether or not good faith efforts

have been demonstrated.

Revision Date: 2024-06-07

Section 26.55 Counting DBE Participation

DBE participation will be counted toward overall and contract goals as provided in §

26.55. The participation of a DBE subcontractor will not be counted toward a

contractor’s final compliance with its DBE obligations on a contract until the amount

being counted has actually been paid to the DBE.

In the case of post-award substitutions or additions, if a firm is not currently certified as

a DBE in accordance with the standards of subpart D of this part at the time of the

execution of the contract, the firm’s participation will not be counted toward any DBE

goals, except as provided for in § 26.87(j).

For FAA-funded projects only, firms that exceed the business size standard in §

26.65(b) will remain eligible for DBE certification and may be counted for DBE credit

toward overall and contract goals on FAA-funded projects as long as they do not

exceed the small business size standard, as adjusted by the United States Small

Business Administration, for the NAICS code(s) in which they are certified.

Revision Date: 2024-06-07

SUBPART D – CERTIFICATION STANDARDS

Section 26.61 – 26.73 Certification Process

Hayward Executive Airport is a non-certifying member of the California Unified

Certification Program (UCP) and relies upon the UCP’s determinations of certification

eligibility. California UCP will use the certification standards of Subpart D of Part 26 to

determine the eligibility of firms to participate as DBEs in DOT-assisted contracts. To

be certified as a DBE, a firm must meet all certification eligibility standards. Certifying

California UCP members make all certification decisions based on the facts as a whole.

For information about the certification process or to apply for certification, firms should

contact:

California Department of Transportation (Caltrans)

Office of Business & Economic Opportunity

1823 14th Street

Sacramento, CA 95811

Phone: 916.324.1700

Email: DBE.Certification@dot.ca.gov

The Uniform Certification Application form, Personal Net Worth statement, and

documentation requirements can be reviewed at https://www.transportation.gov/civil-

rights/disadvantaged-business-enterprise/ready-apply.

Revision Date: 2024-06-07

SUBPART E – CERTIFICATION PROCEDURES

Any procedures included here are highlights only. Detailed certification procedures are

enumerated in the full California UCP agreement. The full UCP agreement can be found

at:

https://californiaucp.dbesystem.com/

https://caltrans.dbesystem.com/

Section 26.81 Unified Certification Programs

Hayward Executive Airport is not a member of a Unified Certification Program (UCP)

administered by the California UCP. The CAUCP is responsible for DBE certification in

the state of California and provides firms a single place to find certifying agencies. To

apply for DBE certification interested firms should contact any one of the ten CUCP

Certifying Partners -Los Angeles County Metropolitan Transit Authority (LA Metro), San

Diego County Regional Airport Authority (SDCRAA), San Francisco Bay Area Rapid

Transit District (BART), San Francisco International Airport (SFO), San Francisco

Municipal Transportation Agency (SFMTA), San Mateo County Transit District

(SAMTrans), Santa Clara Valley Transportation Authority (VTA), City of Los Angeles,

City of Fresno, California Department of Transportation (Caltrans).

The UCP will meet all certification standards and procedures requirements of Subparts

D and E of Part 26.

Section 26.91 Actions Following DOT Certification Appeal Decisions

If the Hayward Executive Airport is a certifier to which a DOT determination under §

26.89 is applicable, we will take any and all required action(s) pursuant to § 26.91.

Revision Date: 2024-06-07

SUBPART F – COMPLIANCE AND ENFORCEMENT

Section 26.101 Compliance Procedures Applicable to Hayward Executive Airport

Hayward Executive Airport understands that if it fails to comply with any requirement of

this part, Hayward Executive Airport may be subject to formal enforcement action under

§ 26.103 or § 26.105 or appropriate program sanctions by the concerned operating

administration, such as the suspension or termination of Federal funds, or refusal to

approve projects, grants or contracts until deficiencies are remedied. Program sanctions

may include, in the case of the FHWA program, actions provided for under 23 CFR

1.36; in the case of the FAA program, actions consistent with 49 U.S.C. 47106(d),

47111(d), and 47122; and in the case of the FTA program, any actions permitted under

49 U.S.C. chapter 53 or applicable FTA program requirements.

Hayward Executive Airport understands that, as provided in statute, it will not be subject

to compliance actions or sanctions for failing to carry out any requirement of this part

because it has been prevented from complying because a Federal court has issued a

final order in which the court found that the requirement is unconstitutional.

Section 26.103 Enforcement Actions Applicable to FHWA and FTA Programs

The provisions of this section apply to enforcement actions under FHWA and FTA

programs. ONLY paragraph (2) of this section is also applicable in FAA programs.

(1) Noncompliance complaints. Any person who believes that a recipient has

failed to comply with its obligations under this part may file a written complaint

with the concerned operating administration's Office of Civil Rights. A complaint

must be filed no later than 180 days after the date of the alleged violation or the

date on which the complainant learned of a continuing course of conduct in

violation of this part. In response to a complainant’s written request, the Office of

Civil Rights may extend the time for filing in the interest of justice, specifying in

writing the reason for so doing. The Office of Civil Rights may protect the

confidentiality of a complainant’s identity as provided in § 26.109(b). Complaints

under this part are limited to allegations of violation of the provisions of this part.

(2) Compliance reviews. The concerned operating administration may review the

recipient's compliance with this part at any time, including reviews of paperwork

and on-site reviews, as appropriate. The Office of Civil Rights may direct the

operating administration to initiate a compliance review based on complaints

received.

(3) Reasonable cause notice. If it appears, from the investigation of a complaint or

the results of a compliance review, that Hayward Executive Airport is in

noncompliance with part 26, the appropriate DOT office will promptly send

Hayward Executive Airport , return receipt requested, a written notice advising

that there is reasonable cause to find Hayward Executive Airport in

noncompliance. The notice states the reasons for this finding and directs

Revision Date: 2024-06-07

Hayward Executive Airport to reply within 30 days concerning whether you wish

to begin conciliation.

(4) Conciliation.

a. If Hayward Executive Airport requests conciliation, the appropriate DOT

office shall pursue conciliation for at least 30, but not more than 120, days

from the date of the request. The appropriate DOT office may extend the

conciliation period for up to 30 days for good cause, consistent with

applicable statutes.

b. If Hayward Executive Airport and the appropriate DOT office sign a

conciliation agreement, then the matter is regarded as closed and

Hayward Executive Airport is regarded as complying. The conciliation

agreement sets forth the measures Hayward Executive Airport has taken

or will take to ensure compliance. While a conciliation agreement is in

effect, Hayward Executive Airport remains eligible for FHWA or FTA

financial assistance.

c. The concerned operating administration shall monitor the implementation

of the conciliation agreement and ensure that its terms are complied with.

If Hayward Executive Airport fail to carry out the terms of a conciliation

agreement, Hayward Executive Airport is in noncompliance.

d. If Hayward Executive Airport does not request conciliation, or a

conciliation agreement is not signed within the time provided earlier in this

section, then enforcement proceedings begin.

(5) Enforcement actions.

a. Enforcement actions are taken as provided in this subpart.

b. Applicable findings in enforcement proceedings are binding on all DOT

offices.

Section 26.105 Enforcement Actions Applicable to FAA Programs

Compliance with all requirements of this part by airport sponsors and other recipients of

FAA financial assistance is enforced through the procedures of Title 49 of the United

States Code, including 49 U.S.C. 47106(d), 47111(d), and 47122, and regulations

implementing them.

The provisions of § 26.103(b) and this section apply to enforcement actions in FAA

programs.

Any person who knows of a violation of this part by a recipient of FAA funds may file a

complaint under 14 CFR part 16 with the Federal Aviation Administration Office of Chief

Counsel.

Section 26.107 Enforcement Actions Applicable to Participating Firms

If a firm that does not meet the eligibility criteria of subpart D of this part attempts to

participate in a DOT-assisted program as a DBE on the basis of false, fraudulent, or

deceitful statements or representations or under circumstances indicating a serious lack

Revision Date: 2024-06-07

of business integrity or honesty, the Department may initiate suspension or debarment

proceedings against the firm under 2 CFR parts 180 and 1200.

If a firm, in order to meet DBE contract goals or other DBE program requirements, uses

or attempts to use, on the basis of false, fraudulent or deceitful statements or

representations or under circumstances indicating a serious lack of business integrity or

honesty, another firm that does not meet the eligibility criteria of subpart D of this part,

the Department may initiate suspension or debarment proceedings against you under 2

CFR parts 180 and 1200.

In a suspension or debarment proceeding brought under paragraph (a) or (b) of this

section, the concerned operating administration may consider the fact that a purported

DBE has been certified by a recipient. Such certification does not preclude the

Department from determining that the purported DBE, or another firm that has used or

attempted to use it to meet DBE goals, should be suspended or debarred.

The Department may take enforcement action under 49 CFR Part 31, Program Fraud

and Civil Remedies, against any participant in the DBE program whose conduct is

subject to such action under 49 CFR part 31.

The Department may refer to the Department of Justice, for prosecution under 18

U.S.C. 1001 or other applicable provisions of law, any person who makes a false or

fraudulent statement in connection with participation of a DBE in any DOT-assisted

program or otherwise violates applicable Federal statutes.

Section 26.109 Confidentiality, Cooperation, and Intimidation or Retaliation

In responding to requests for information concerning any aspect of the DBE program,

the Department complies with provisions of the Federal Freedom of Information and

Privacy Acts (5 U.S.C. 552 and 552a). The Department may make available to the

public any information concerning the DBE program release of which is not prohibited

by Federal law.

Notwithstanding any provision of Federal or state law, information that may reasonably

be construed as confidential business information will not be released to any third party

without the written consent of the firm that submitted the information, including

applications for DBE certification and supporting information. However, this information

will be transmitted to DOT in any certification appeal proceeding under § 26.89 or to any

other state to which the individual’s firm has applied for certification under § 26.85.

All participants in the Department's DBE program (including, but not limited to,

recipients, DBE firms and applicants for DBE certification, complainants and appellants,

and contractors using DBE firms to meet contract goals) are required to cooperate fully

and promptly with DOT and recipient compliance reviews, certification reviews,

investigations, and other requests for information. Failure to do so shall be a ground for

appropriate action against the party involved (e.g., with respect to recipients, a finding of

Revision Date: 2024-06-07

noncompliance; with respect to DBE firms, denial of certification or removal of eligibility

and/or suspension and debarment; with respect to a complainant or appellant, dismissal

of the complaint or appeal; with respect to a contractor which uses DBE firms to meet

goals, findings of non-responsibility for future contracts and/or suspension and

debarment).

Hayward Executive Airport , contractor, or any other participant in the program will not

intimidate, threaten, coerce, or discriminate against any individual or firm for the

purpose of interfering with any right or privilege secured by this part or because the

individual or firm has made a complaint, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this part. Hayward Executive

Airport understands that it is in noncompliance with Part 26 if it violates this prohibition.

Revision Date: 2024-06-07

ATTACHMENTS

Attachment 1 Regulations: Link to 49 CFR Part 26 (eCFR)

Attachment 2 Organizational Chart

Attachment 3 Bidder’s List Collection Form

Attachment 4 Link to UCP Directory of Certified Firms

Attachment 5 Overall Goal Methodology

Attachment 6 Demonstration of Good Faith Efforts Forms

Attachment 7 DBE Monitoring and Enforcement Mechanisms

Attachment 8 Link to Certification Application Form and Personal Net Worth Statement

Attachment 9 State’s UCP Agreement

Attachment 10 Small Business Element Program

Revision Date: 2024-06-07

ATTACHMENT 1

DBE program regulations are codified in Title 49 of the Code of Federal Regulations,

Part 26. They can be retrieved using the following link to the Electronic Code of Federal

Regulations:

https://www.ecfr.gov/current/title-49/subtitle-A/part-26

Revision Date: 2024-06-07

ATTACHMENT 2

ORGANIZATIONAL CHART

Revision Date: 2024-06-07

ATTACHMENT 3

Bidder’s List Collection Form

Firm Name

Firm Address

(including ZIP

code)

DBE or

Non-DBE

Status

NAICS

Code(s) of

Scope(s)

Bid

Race/Gender of

Majority Owner

Age of Firm

Annual Gross

Receipts

 Black American

 Hispanic American

 Asian-Pacific

American

 Subcontinent Asian

American

 Native American

 Non-minority Woman

 Other

 Less than 1

year

 3 years

 4-7 years

 8-10 years

 More than 10

years

 Less than $1

million

 $1-3 million

 $3-6 million

 $6-10 million

 Over $10

million

 Black American

 Hispanic American

 Asian-Pacific

American

 Subcontinent Asian

American

 Native American

 Non-minority Woman

 Other

 Less than 1

year

 3 years

 4-7 years

 8-10 years

 More than 10

years

 Less than $1

million

 $1-3 million

 $3-6 million

 $6-10 million

 Over $10

million

 Black American

 Hispanic American

 Asian-Pacific

American

 Subcontinent Asian

American

 Native American

 Non-minority Woman

 Other

 Less than 1

year

 3 years

 4-7 years

 8-10 years

 More than 10

years

 Less than $1

million

 $1-3 million

 $3-6 million

 $6-10 million

 Over $10

million

Revision Date: 2024-06-07

ATTACHMENT 4

California UCP Directory may be found here:

https://californiaucp.dbesystem.com/

Revision Date: 2024-06-07

ATTACHMENT 5

Overall DBE Three-Year Goal Methodology

Name of Recipient: City of Hayward

Goal Period: FY-2025-2027 – October 1, 2025 through September 30, 2027

DOT-assisted contract amount: FY-2025 $6,743,100

FY-2026 $5,497,000

FY-2027 $590,000

Total $12,830,100

Overall Three-Year Goal: 5.52%, to be accomplished through 100% RN

Total dollar amount to be expended on DBEs: $708,221.52

Describe the Number and Type of Contracts that the airport anticipates awarding:

Contracts Fiscal Year #1

1. Airport Project – Tower Siting Study - $225,500

2. Taxiway Z West Reconstruction – Construction (BIL) – $2,723,300

3. Taxiway Z West Reconstruction – Construction - $2,426,300

4. Tower Renovations for Design and Construction - $600,000

5. T Hangar improvements - $200,000

6. Taxiway Z Design - $568,000

Contracts Fiscal Year #2

1. Air Traffic Control Tower Relocation (Environmental) - $1,000,000

2. OFA Midfield Improvements Construction – Sulphur Creek Culvert (RSAT

Recommendation) - $4,500,000

Contracts Fiscal Year #3

1. Taxiway A West Rehab Design - $590,000

Market Area: Alameda County, San Francisco County, San Mateo County, Contra

Costa County, Marin County, Santa Clara County, Napa County, Solano County, and

Sonoma County.

Step 1. Relative Availability of DBEs

The step 1 figure for the relative availability was calculated as follows:

Method: Use DBE Directories https://californiaucp.dbesystem.com

and Census Bureau Data from https://data.census.gov/cedsci/

Revision Date: 2024-06-07

Weighted Availability of DBE firms:

Fiscal Year #1

For FY-2025, award of the following is anticipated:

Contract Name

Trade

Description

NAICS Description

NAICS

Trade ($)

Census

Directory

DBE (%)

DBE ($)

(= Trade $

x DBE %)

Taxiway A

West Rehab

Design

Civil

Engineering

Engineering Design

Services

541330

$400,000

523

0.4%

$1,530

Geotechnical

Engineers

Testing Laboratory

(Geotechnical)

541380

$85,000

523

0.0%

$0.00

Surveyor

Survey and Mapping

541370

$65,000

40.0%

$26,000

County development

agencies

N/A

$40,000

Dividing the weighted DBE totals by the total estimate for all trades gives an initial DBE

availability figure for the projects anticipated during the goal-setting period (This figure is

expressed as a percentage and serves as the basis for the three-year overall goal.

Weighted DBE Goal at Step 1: 5.52%

Revision Date: 2024-06-07

Step 2: Adjustments to Step 1 base figure

After calculating a base figure of the relative availability of DBEs, evidence was examined to

determine what, if any, adjustment to the base figure was needed in order to arrive at the overall

goal.

Past History Participation

Not enough historical data on DBE participation is available to reference to make an adjustment

to the Step 1 base figure; therefore, Hayward Executive Airport is adopting the Step 1 base

figure as the overall goal for this three-year goal period.

Furthermore, there are no applicable disparity studies for the local market area or recent legal

case information from relevant jurisdictions to show evidence of barriers to make entry or

competitiveness of DBEs in the market area that is sufficient to warrant making an adjustment to

the base goal.

Revision Date: 2024-06-07

Breakout of Estimated “Race and Gender Neutral” (RN) Participation.

Under 49 CFR 26.13(b): The contractor, subrecipient or subcontractor shall not

discriminate based on race, color, national origin, or sex in the performance of this

contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in

the award and administration of DOT-assisted contracts. Failure by the contractor to

carry out these requirements is a material breach of this contract, which may result in

the termination of this contract or such other remedy as the recipient deems

appropriate.

Take necessary and reasonable steps to ensure that DBEs have opportunity to

participate in the

contract (49 CFR 26).

The prime contractor shall meet the DBE goal shown elsewhere in these special

provisions or demonstrate that they made adequate good faith efforts to meet this goal.

Make work available to DBEs and select work parts consistent with available DBE

subcontractors and suppliers.

It is your responsibility to verify that the DBE firm is certified as DBE at date of bid

opening. For a list of DBE s certified by the California Unified Certification Program, go

to:

http://www.ucp.dot.ca.gov

All DBE participation will count toward the California Department of Transportation’s

federally mandated statewide overall DBE goal.

Credit for materials or supplies you purchase from DBEs counts towards the goal in the

following manner:

1. 100 percent counts if the materials or supplies are obtained from a DBE

manufacturer.

2. 60 percent counts if the materials or supplies are obtained from a DBE regular

dealer.

3. Only fees, commissions, and charges for assistance in the procurement and

delivery of materials or supplies count if obtained from a DBE that is neither a

manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and

"regular dealer."

You receive credit towards the goal if you employ a DBE trucking company that

performs a

commercially useful function as defined in 49 CFR 26.55(d)(1) through (4) and (6).

Revision Date: 2024-06-07

Hayward Executive Airport will meet the maximum feasible portion of the overall goal by

using RN means of facilitating DBE participation.

1. Provide notices of informally let contracts to DBEs who perform those types of

work or supply materials relative to the contract.

2. Refer DBEs to other resources for assistance when appropriate.

Hayward Executive Airport estimates that in meeting the established overall goal of

5.52% it will obtain 100% from RN participation measures.

This breakout is based on:

a) The U.S. 9

Circuit Court decision in the Western States Paving vs. Washington

State DOT case. The Court ruled the Department of Transportation’s DBE

Program is constitutional and narrowly tailored, however race conscious

elements of a national program must be limited to those parts of the country

where its race-based measures are demonstrably needed. Use of RC measures

must be substantiated by a disparity study reflecting evidence of discrimination.

Analysis in the 2012 Disparity Study completed by BBC Research & Consulting

for the California Department of Transportation (Caltrans) showed that Caltrans

had a higher percentage of DBE participation on contracts that did not use race-

conscious goals.

Hayward Executive Airport will adjust the estimated breakout of RN and RC DBE

participation as needed to reflect actual DBE participation and track and report RN and

RC participation separately. For reporting purposes, RN DBE participation includes, but

is not necessarily limited to the following: DBE participation through a prime contract

obtained through customary competitive procurement procedures; DBE participation

through a subcontract on a prime contract that does not carry a DBE goal, DBE

participation on a prime contract exceeding a contract goal, and DBE participation

through a subcontract from a prime contractor that did not consider a firm’s DBE status

in making the award.

Revision Date: 2024-06-07

PUBLIC PARTICIPATION

Consultation: Section 26.45 (g)(1).

In establishing the overall goal, Hayward Executive Airport provided for consultation and

publication. This process included consultation with minority, women’s, and general

contractor groups, community organizations, and other officials or organizations which

could be expected to have information concerning the availability of disadvantaged and

non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs,

and Hayward Executive Airport efforts to establish a level playing field for the

participation of DBEs. The consultation included a scheduled, direct, interactive

exchange with as many interested stakeholders as possible focused on obtaining

information relevant to the goal setting process, and was conducted before the goal

methodology was submitted to the operating administration for review. Details of the

consultation process are as follows.

The consultation will be in a hybrid public meeting held on August 14, 2024, at 10:00

a.m. for the purpose of consulting with stakeholders to obtain information relevant to the

goal-setting process. The first fifteen minutes will be used to explain the process behind

the goal calculation, and the balance of the meeting will be open to public comment

related to the goal. The meeting will be held at Hayward Executive Airport Conference

room and accessible online through a Zoom meeting link.

Comments will be collected and will be added to a future version to be submitted to the

FAA.

A notice of the proposed goal was published on the Hayward Executive Airport official

website before the methodology was submitted to FAA.

Following the consultation, a notice was published in the Hayward Executive Airport

regarding the proposed overall goal, informing the public that the proposed goal and its

rationale are available for inspection during normal business hours at the Hayward

Executive Airport offices for 30 days following the date of the notice, and informing the

public that Hayward Executive Airport will accept comments on the goals for 30 days

from the date of the notice.

If the proposed goal changes following review by FAA, the revised goal will be posted

on the Hayward Executive Airport official website.

Notwithstanding paragraph (f)(4) of §26.45, Hayward Executive Airport proposed goals

will not be implemented until the stakeholder consultation requirement has been met.

Our overall goal submission to DOT will include a summary of information and

comments received during this public participation process and our responses, if any.

Revision Date: 2024-06-07

PUBLIC NOTICE

Hayward Executive Airport hereby announces its proposed Disadvantaged Business

Enterprise (DBE) participation goal of 5.52% for FAA-funded contracts/agreements. The

proposed goal pertains to federal fiscal years 2025 through 2027. Prior to submittal to the

FAA, a hybrid public meeting will be held on August 14, 2024, at 10:00 a.m. for the

purpose of consulting with stakeholders to obtain information relevant to the goal-setting

process.

The meeting will consist of two parts. The first fifteen minutes will be used to explain the

process behind the goal calculation, and the balance of the meeting will be open to public

comment related to the goal. Specific subjects will include DBE participation at Airport

projects, and hear from community organizations who can share information on the

availability of disadvantaged and non-disadvantaged businesses, the effects of

discrimination on opportunities for DBEs and the recipient’s efforts to establish a level

playing field for the participation of DBEs. Minority, women’s and general contractor

groups and encouraged to participate.

The proposed goal and its attendant methodology are available for inspection between

8:00 a.m. and 5:00 p.m. Monday through Friday at the Hayward Executive Airport Office

and on the Airport webpage (http://www.hayward-ca.gov/airport/doing-business-withus/projects)

for 30 days from the date of this publication.

Meeting details:

August 14, 2024, at 10:00 a.m.

Hayward Executive Airport Conference Room

20301 Skywest Dr

Hayward, CA 94541

Virtual attendance can be accessed via this link:

Virtual attendance can be accessed via this link: https://kimley-

horn.zoom.us/j/97518716681?pwd=BgL5bAMLC2ruQuB2lbVSQRg8zMiPRb.1

Meeting ID: 975 1871 6681

Passcode: 314262

Comments on the DBE goal will be accepted for 30 days from the date of this publication and

can be sent to the following:

Hayward Executive Airport

20301 Skywest Drive, Hayward, CA 94541

510-293-8678

airport@hayward-ca.gov

Revision Date: 2024-06-07

ATTACHMENT 6

Demonstration of Good Faith Efforts - Forms 1, 2, and 3

FORM 1: DISADVANTAGED BUSINESS ENTERPRISE (DBE) UTILIZATION

The undersigned bidder/offeror has satisfied the requirements of the bid specification in

the following manner:

□ Bidder/offeror has met the DBE contract goal

The bidder/offeror is committed to a minimum of ____ % DBE utilization on this

contract.

□ Bidder/offeror has not met the DBE contract goal

The bidder/offeror is committed to a minimum of ____% DBE utilization on this

contract and has submitted documentation demonstrating good faith efforts.

Legal name of bidder/offeror’s firm: ______________________________________

Bidder/Offeror Representative:

____________________________________________________________

Name & Title

______________________________________ ___________________

Signature Date

Revision Date: 2024-06-07

FORM 2: LETTER OF INTENT

Note: The authorized representative (AR) named below must be an individual vested with the

authority to make contracting decisions on behalf of the firm.

Name of bidder/offeror’s firm: _________________________________________________

Name & title of firm’s AR: ____________________________________________________

Phone: _____________________________ Email: ________________________________

Name of DBE firm: __________________________________________________________

Name & title of DBE firm’s AR: _________________________________________________

Address: __________________________________________________________________

City: _____________________________________ State: _______ Zip: _______________

Phone: _________________________ Email: ____________________________________

Work to be performed by DBE firm:

Description of Work

NAICS

Dollar Amount / %*

Manufacturer/Regular

Dealer/Distributor/Broker**

*Percentage is to be used only in negotiated procurements

**For DBE suppliers only, state how the DBE will perform. For dealer/distributor/broker, Form 3 must be included.

The undersigned bidder/offeror is committed to utilizing the above-named DBE firm for the work

described above. The total expected dollar value of this work is

$ ____________________. The bidder/offeror understands that if it is awarded the

contract/agreement resulting from this procurement, it must enter into a subcontract with the

DBE firm identified above that is representative of the type and amount of work listed.

Bidder/offeror understands that upon submitting this form with its bid/offer, it may not substitute

or terminate the DBE listed above without following the procedures of 49 CFR Part 26, §26.53.

_____________________________________________ Date: _______________

Signature of Bidder/Offeror’s Authorized Representative

The undersigned DBE affirms that it is ready, willing, and able to perform the amount and type

of work as described above, and is properly certified to be counted for DBE participation

therefore.

_____________________________________________ Date: _______________

Signature of DBE’s Authorized Representative

If the bidder/offeror does not receive award of the prime contract, all representations in

this Letter of Intent shall be null and void.

Submit this page for each DBE subcontractor.

Revision Date: 2024-06-07

Form 3: DBE Regular Dealer/Distributor Affirmation Form

Revision Date: 2024-06-07

ATTACHMENT 7

Administrative Enforcement Mechanisms

Hayward Executive Airport has available several remedies to enforce the DBE

requirements contained in its contracts, including, but not limited to, the following:

1. Breach of contract action, pursuant to the terms of the contract;

2. Breach of contract action, pursuant to State Code Civil Code Sections 3300-

3302 and 3353-3360.

Revision Date: 2024-06-07

ATTACHMENT 8

DBE Certification Application Form and Personal Net Worth Statement:

Hayward Executive Airport is not a certifying agency but relies on DBE certifications

of the California UCP. A link to the California DBE UCP Certification Application

Process, including required forms, is available at https://www.transportation.gov/civil-

rights/disadvantaged-business-enterprise/ready-apply

Revision Date: 2024-06-07

ATTACHMENT 9

California UCP Agreement:

Hayward Executive Airport does not have an agreement with the California UCP, but

does rely on the California UCP certification to determine eligibility of a firms’

participation in FAA-funded contracts to be counted toward DBE program and contract

goals.

Revision Date: 2024-06-07

ATTACHMENT 10

Small Business Element

1. Objective/Strategies

(1) On prime contracts not having DBE contract goals, requiring the prime contractor to

provide subcontracting opportunities of a size that small businesses, including DBEs,

can reasonably perform, rather than self-performing all the work involved.

(2) To meet the portion of the overall goal projected to be met through race-neutral

measures, ensuring that a reasonable number of prime contracts are of a size that small

businesses, including DBEs, can reasonably perform.

2. Definition

As stated on the Office of Small Business and DVBE Services website. Small Business

to be eligible for certification, the small business must meet the following

requirements:

• Be independently owned and operated;

• Not dominant in field of operation;

• Principal office located in California;

• Owners (officers, if a corporation) domiciled in California; and,

• Including affiliates, be either,

o A business with 100 or fewer employees; an average annual gross receipts of

$16 million or less, over the last three tax years;

o A manufacturer with 100 or fewer employees; or,

o A micro business – a small business will automatically be designated as a

micro business, if gross annual receipts are $5,000,000 or less; or the small

business is a manufacturer with 25 or fewer employees.

3. Verification

The Office of Small Business and DVBE Services (OSDS) is the state’s certifying that

administers the small business, small business for the purpose of public works, and DVBE

certification programs. Contractor shall maintain, and provide to the City, documentation from

the OSDS recognizing subcontractors as being certified as a small business or DVBE.

4. Monitoring/Record Keeping

• Hayward Executive Airport will establish Small Business Enterprise (SBE) participation

goals concurrent with the next DBE overall goal setting process.

5. Assurances

• The program is permitted under state law;

• Certified DBEs that meet the size criteria established under the program are

presumptively eligible to participate in the program;

Revision Date: 2024-06-07

• No limits are placed on the number of contracts awarded to firms participating in the

program, but every effort will be made to avoid creating barriers to the use of new,

emerging, or untried businesses; and

• Aggressive steps will be taken to encourage those minority and women owned firms that

are eligible for DBE certification to become certified.

• The program is open to small businesses regardless of their location (i.e., there is no

local or other geographic preference).