PROPOSAL:

Consider Adoption of Interim Contracting and Purchasing Policy and Consultant Selection Policy Based on Change in the Law.

SYNOPSIS:

On September 19, 1997 the Administrative Committee recommended that an interim policy be adopted to comply with changes in the law due to imposition of Proposition 209 and certain federal requirements. This action is for the Board to consider adoption of an Interim Contracting and Purchasing Policy and Consultant Selection policy to be effective until a revised policy can be adopted.

COMMITTEE:

Administrative, September 19, 1997, Recommended for Approval

RECOMMENDED ACTION:

Adopt the Interim Contracting and Purchasing Policy and Consultant Selection Policy.

Barry R. Wallerstein, D.Env.
Acting Executive Officer

Background

On November 5, 1996, California voters approved Proposition 209. Proposition 209 prohibits granting preferential treatment based upon race, ethnicity, color, sex or national origin in the operation of public employment, public education or public contracting. A stay of enforcement was immediately granted prohibiting the implementation of Proposition 209. On August 21, 1997, the stay was lifted, and Proposition 209 went into effect 7 days thereafter, August 28, 1997.

At its September 19, 1997, meeting the Administrative Committee considered options for amendments to the District’s contracting policies to comply with Proposition 209 and other provisions of law. The Committee directed staff to draft certain proposals for further consideration at the Committee’s next meeting. In the meantime, to ensure compliance with Proposition 209 and certain federal regulations, the Committee recommended Board adoption of an Interim Policy to ensure that the agency is in compliance with Proposition 209 and all applicable laws. A proposed final policy will be discussed with the Administrative Committee at its next meeting. These further changes will require a public hearing with 30 days public notice, for the amendment to the District’s Contracting and Purchasing Policy and Consultant Selection Policy. As a result the final revised policy will likely be presented to the Board at the December meeting.

The Interim Policy proposed for adoption at this meeting makes only those changes necessary to comply with current law. The Interim Policy would (1) eliminate preference points based on race or gender, and (2) modify the "good faith effort" requirement to ensure that it does not require more than the conditions of the District’s federal grant requirements. Proposition 209 does not prohibit actions necessary to maintain federal funding. The District’s good faith effort requirement is more stringent than federal requirements because it requires virtually all bidders which are non-minority or women owned to conduct a good faith effort to identify potential minority or women-owned subcontractors. The District’s federal grant only requires such an effort if subcontracts are to be let. In addition, the federal requirements only apply to contracts which are subject to the agency’s grant application. In general, these contracts will be paid for in part with federal funds. Due to the broad purposes for which they are granted, the federal funds are commingled in the District’s general fund. Contracts which do not involve federal funding are MSRC, some TAO and others involving special funds, e.g., Air Quality Investment Program. Another change, required by federal regulations, would eliminate the granting of local business preference points in contracts subject to the federal grant requirements. Attached is a copy of the District’s Contracting and Purchasing Policy and Consultant Selection Policy in strikeout/underline form reflecting the changes of the Interim Policy.

The proposed Interim Policy would go into effect immediately. It would be applied to contracts proposed for award at this Board meeting. In anticipation of the possibility that the judicial stay of implementation of Proposition 209 might be lifted, the District included a paragraph in RFPs issued after the November 1996 general election which notified bidders that the District would comply with the law in effect at the time of contract award. This notice specifically referred to the preferences in the District’s contracting policies. Thus, while the Board has the option to reissue the RFPs for contracts proposed for award today, it is District Counsel’s opinion that the agency would have a reasonable basis to proceed with contract awards without reissuing the RFPs with language explicitly incorporating the Interim Policy. All contract and RFP Board letters presented to the Board for this meeting have been modified to comply with the proposed Interim Policy.

Proposal

Adopt the Interim Contracting and Purchasing Policy and Consultant Selection Policy.

Fiscal Impact

None.

Attachments

1. Contracting and Purchasing Policy

2. Consultant Selection Policy

/ / /