Statutes, codes, and regulations
Rhode Island Administrative Code
Title 220 - Department of AdministrationChapter 80 - Diversity, Equity and OpportunitySubchapter 15 - Veteran Business Enterprise
Part 1 - Certification and Decertification of Veteran Business Enterprises by the State of Rhode Island and Participation by Veteran Business Enterprises in State Purchases of Goods and Services and Public Works Projects
Section 220-RICR-80-15-1.15 - Compliance with Regulations Governing Participation in State Purchases and Public Works Projects

220 R.I. Code R. 220-RICR-80-15-1.15

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Current through October 25, 2024
Section 220-RICR-80-15-1.15 - Compliance with Regulations Governing Participation in State Purchases and Public Works Projects
A. Scope
1. State Agencies as defined herein shall comply with these regulations; provided, however, that pursuant to R.I. Gen. Laws §§ 37-14.3-6 and 37-14.3-7 the Director of the Department of Transportation has received delegated authority to adopt regulations consistent with R.I. Gen. Laws Chapter 37-14.3 thereby exempting the Department of Transportation from the requirements of these Regulations.
B. Waivers
1. The Director of Administration may waive strict application of these Regulations when it has been determined in writing that the Proposer or Bidder must satisfy requirements of federal law which achieve the goals and purpose of these Regulations. The Director must provide written notice of any waiver to the ODEO. All such notices shall be available for public inspection.
C. Requests for Proposals and Requests for Quotes
1. This section applies whenever the Division or a State Agency seeks to procure goods, services, and/or public works projects through the issuance of an RFP or RFQ.
2. Aggregate Utilization Rate
a. The Aggregate Utilization Rate is three percent (3%) provided that, in the event the percentage set forth by R.I. Gen. Laws § 37-14.3-4 is amended, the Aggregate Utilization Rate herein shall also be amended so that it always reflects the percentage set forth by R.I. Gen. Laws § 37-14.3-4.
3. State Agency Responsibilities
a. VBE Coordinator
(1) For each RFP or RFQ issued, the Using Agency shall designate a VBE Coordinator no later than the time the RFP or RFQ is issued. For each RFP or RFQ assigned to him or her, the VBE Coordinator shall be responsible for compliance oversight and tracking and recordkeeping all data and information that is required to be reported by each State Agency under § 1.15(F)(1) of this Part.
b. Agency Procedures
(1) Each State Agency shall attempt to achieve the Aggregate Utilization Rate by applying one of the two methods as described below in § 1.15(C)(3)(c) of this Part (Prime Contractor Method) and § 1.15(C)(3)(d) of this Part (No Prime Contractors).
c. Prime Contractor Method
(1) For each procurement where Bidders will be serving as a prime contractor, the Using Agency shall ensure that it tries to achieve, at a minimum, the Aggregate Utilization Rate. The Using Agency shall ensure that the Bidder either meets or exceeds this requirement or has been granted a good faith waiver.
d. No Prime Contractors
(1) In lieu of using the prime contractor method described above in § 1.15(C)(3)(c) of this Part, the Using Agency may meet the Aggregate Utilization Rate by ensuring that the rate is met in the aggregate for each fiscal year. VBEs may be solicited directly to accomplish this requirement.
4. Bidder Responsibilities
a. Acknowledgement
(1) A Bidder shall include with its bid or quote, a statement acknowledging the provisions of R.I. Gen. Laws Chapter 37-14.3 and its obligation to meet the Aggregate Utilization Rate. Satisfying this requirement means that a minimum of the Aggregate Utilization Rate of the total dollar value of work to be performed in relation to the procurement will be performed by certified VBEs. If a Bidder is a VBE, it may satisfy this requirement by performing a minimum of the Aggregate Utilization Rate of the total dollar value of work itself.
b. Submission of VBE Compliance Plan
(1) Bidders must submit a VBE Compliance Plan to the Division. The VBE Compliance Plan shall identify each VBE name, each subcontract dollar amount and type, and each subcontract that the Bidder projects will be awarded to VBEs over the period of the project. Unless otherwise indicated in the solicitation, the Bidder must submit this VBE Compliance Plan within five (5) business days of receipt of a tentative award issued by the Division.
c. VBE Liaison Officer
(1) The chief executive officer of each Bidder shall designate a VBE liaison officer who shall be responsible for coordinating with the ODEO, Division and the Using Agency throughout the life of the contract.
5. Approval or Disapproval of VBE Plan
a. Review
(1) The MBECO shall review VBE Compliance Plans. Any VBE Compliance Plan that reasonably ensures compliance with the Aggregate Utilization Rate requirement shall be approved.
b. Impossibility of Compliance
(1) Where the Bidder has proved that for reasons beyond its control, compliance with the Aggregate Utilization Rate requirements is impossible, the MBECO may approve a VBE Compliance Plan that ensures compliance with a VBE utilization rate of less than the Aggregate Utilization Rate. To prove impossibility of compliance, the Bidder must demonstrate that it is making all appropriate good faith efforts as listed in § 1.15(C)(6)(d) of this Part to increase VBE participation to the Aggregate Utilization Rate level. The Bidder must also demonstrate that, despite the Bidder's efforts, the Bidder's VBE Compliance Plan represents a reasonable exception to the Aggregate Utilization Rate due to valid reasons such as the lack of availability and/or willingness of qualified VBEs to work on the contract.
c. Revised Plan
(1) If the MBECO does not approve the VBE Compliance Plan that the Bidder has initially submitted, the Bidder, after consulting with the MBECO, shall present a revised plan to the MBECO for review.
d. Reconsideration
(1) Within five (5) business days of having its VBE Compliance Plan denied by the MBECO, the Bidder may appeal to the Associate Director of ODEO for reconsideration. All appeals must be in writing and addressed to the Associate Director of ODEO, One Capitol Hill, 3rd Floor, Providence, RI 02908. A written reconsideration decision will be issued by the Associate Director of ODEO within thirty (30) business days of receipt provided that the Associate Director of ODEO may extend such time upon good cause.
e. Failure to Have an Approved Plan
(1) A Bidder's failure to have an approved VBE Compliance Plan constitutes non-compliance with the provisions of R.I. Gen. Laws Chapter 37-14.3.
6. Continuing Disclosure
a. On-Site Inspections
(1) The Division, ODEO and the Using Agency's VBE Coordinator are permitted to periodically conduct on-site inspections to determine compliance with the provisions of R.I. Gen. Laws Chapter 37-14.1 and § 1.15(C)(2)(a) of this Part. The Division, ODEO, or the Using Agency's VBE Coordinator may require a Bidder to furnish copies of purchase orders, subcontracts, cancelled checks, and other records needed to substantiate a Bidder's compliance with its approved VBE Compliance Plan.
b. Change Orders
(1) If during the life of the contract or project, a change order is issued by the Division, the Proposer shall notify the ODEO of the change as soon as reasonably possible. Proposers must submit to the ODEO a revised VBE Compliance Plan consistent with achieving the Aggregate Utilization Rate on any change order amounts.
c. Notice of Failure
(1) If a Bidder fails to meet the requirements outlined in its approved VBE Compliance Plan, it shall explain to the Division, in writing, why the requirements could not be met and why meeting the requirement was beyond the Bidder's control.
d. Good Faith Waivers
(1) The Division in consultation with the ODEO may issue a good faith waiver which shall exempt the Bidder from meeting its VBE requirements. To determine whether a Bidder has a good faith reason for failing to meet its requirements, the Division may consider among other factors:
(AA) Whether the Bidder attended any pre-solicitation or pre-bid meetings that were scheduled by the Division to inform VBEs of contracting or subcontracting opportunities;
(BB) Whether the Bidder advertised in general circulation, trade association, and veteran focused media concerning the subcontracting opportunities;
(CC) Whether the Bidder provided written notice to a reasonable number of specific VBEs that their interest in a contract was being solicited, in sufficient time to allow VBEs to participate;
(DD) Whether the Bidder followed up with VBEs that showed an initial interest by contacting the firms to determine whether they were interested;
(EE) Whether the Bidder selected portions of work to be performed by VBEs in order to increase the likelihood of meeting VBE participation requirements (including where appropriate, breaking down contracts into economically feasible units to facilitate VBE participation;
(FF) Whether the Bidder provided interested VBEs with adequate information about the plans, specifications and requirements of the contract;
(GG) Whether the Bidder negotiated in good faith with interested VBEs;
(HH) Whether the Bidder made suggestions to interested VBEs to assist them in obtaining bonding, lines of credit, or insurance required by the Bidder;
(II) Whether the Bidder effectively used the services of available veteran community organizations, veteran contactors' groups, local, state and federal veteran business assistance offices; and other organizations that provide assistance in the recruitment and placement of VBEs.
e. Remedial Action
(1) If the Bidder does not make such an explanation, or if the Division determines that the Bidder's explanation does not justify its failure to meet the requirements in its approved VBE Compliance Plan, the Division may direct the Bidder to take appropriate remedial action. Failure to take remedial action directed by the Division constitutes non-compliance with the provisions of R.I. Gen. Laws Chapter 37-14.3 and the Bidder shall be subject to the sanctions as prescribed in R.I. Gen. Laws § 37-14.3-6.
7. Concurrent Compliance with Federal Law
a. The Aggregate Utilization Rate requirement set forth in § 1.15(C)(2) (a) of this Part can be satisfied concurrently with similar requirements mandated under federal law.
D. Standard Forms
1. The ODEO is authorized to develop, adopt, and publish uniform documents and standard forms as the ODEO deems appropriate to ensure consistency in effectuating these Regulations.
E. RFP/RFQ Language
1. All solicitations covered by these Regulations should include language that references R.I. Gen. Laws Chapter 37-14.3 and R.I. Gen. Laws Chapter 37-2.2.
F. Recordkeeping
1. State Agencies shall keep records relating to the utilization of VBEs for each of their solicitations and resulting contracts. The records shall include at a minimum the name of the Proposer or Bidder that is awarded the contract, the name of each VBE that subcontracts with the Proposer or Bidder, the dollar value that corresponds with each subcontract, the Proposer's proposed VBE Participation Rate, the Bidder's proposed VBE utilization rate as indicated in the Bidder's approved VBE Compliance Plan, the Proposer's actual VBE Participation Rate, and the Bidder's actual VBE utilization rate. State agencies shall complete and submit all standard forms adopted pursuant to § 1.15(D)(1) of this Part and shall report such information to the ODEO on an annual basis or as requested by the ODEO.

220 R.I. Code R. 220-RICR-80-15-1.15

Adopted effective 7/3/2019