MBE/WBE/SBRA - Solicitation Guidance

Environmental Improvement Fund

Solicitation Requirements

Municipalities and prime contractors must solicit MBE/WBE/SBRA participation whenever state procurement laws require competitive bidding. The solicitation requirements apply to any procurements which must be competitively bid, including contracts for supplies or materials. Municipalities and prime contractors must do one or more of the following in order to comply with MBE/WBE/SBRA solicitation requirements:

1. Include language in bid advertisements that encourages MBEs/WBEs/SBRAs to submit bid proposals. If contracts are advertised separately, each advertisement should include the MBE/WBE/SBRA language.
   • Municipalities:  To make a good faith effort when hiring prime contractors, the municipality can add a statement to its advertisements for prime contractors such as "We encourage MBEs and WBEs to submit bid proposals." The advertisements must appear in at least the official newspaper of public record for the municipality. The municipality must then submit a copy of the advertisement to the EIF.

   • Prime contractors:  To make a good faith effort when subcontracting, a prime contractor can advertise for subcontractors with an ad that includes a statement such as "MBEs and WBEs are encouraged to submit proposals." A single ad may include solicitation for multiple subcontracts. The advertisement(s) must appear in an industry trade publication and/or the official newspaper of public record for the municipality. The consulting engineer or the municipality must submit the ad to the EIF along with other bid documents.

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2. Contact 5 MBEs and 5 WBEs (and 5 SBRAs if receiving federal funds) to solicit bids. This option is available for both municipalities hiring prime contractors and prime contractors hiring subcontractors. To comply with the MBE/WBE/SBRA requirements, the EIF requires documentation of all contacts. If both the municipality and the prime contractor choose to follow this procedure, each must make 5 MBE contacts and 5 WBE contacts.

   The municipality and the consulting engineer must review the contact documentation and certify to the DNR on Form 8700-294 that a good faith effort was made to utilize MBEs and WBEs in the project. To help municipalities and contractors document MBE/WBE/SBRA contact information, the EIF developed an MBE/WBE/SBRA Contacts Worksheet (Form 8700-294A). It is not mandatory that the municipality submit the Worksheet; however, it must provide all of the necessary information in some format to the EIF. The municipality should include the Contacts Worksheet in bidding documents provided to contractors as part of the request for proposal process.

3. Show that there is a lack of MBEs and/or WBEs available to contact. If a municipality or a prime contractor chooses to make contacts rather than add language to bid advertisements but then is unable to locate 5 MBEs and 5 WBEs in the appropriate work categories, the municipality or prime contractor can meet the good faith effort requirement by doing the following:
   • Review the following two directories for utilization prospects: a) the Wisconsin Unified Certification Program Eligibility Directory, available on the Wisconsin Department of Transportation's website; and b) the Wisconsin Minority-Owned Business Directory, available on the Wisconsin Department of Administration's website.

   • Document the efforts made to locate MBE/WBE firms and certify to the DNR that a good faith effort was made to utilize MBEs and WBEs in the project. The municipality and prime contractor(s) must document their efforts on line 13 of the MBE/WBE/SBRA Good Faith Certification (Form 8700-294).

4. Meet the fair share objectives, which are currently 3% participation in the project by MBEs and 12% participation by WBEs. A municipality that awards contracts of 15% or more of project costs to any combination of MBEs and/or WBEs also meets the fair share objectives.

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Agency-Certified or Self-Certification

If an MBE or WBE is utilized in the project, the MBE or WBE must be on a list of enterprises certified by a government agency or other type of certifying agency, or the enterprise may self-certify. To self-certify, an MBE must complete an MBE Self-Certification (Form 8700-295), and a WBE must complete a WBE Self-Certification (Form 8700-296). EIF staff will not be able to count the MBE or WBE contract toward the procurement goal if the enterprise is not either certified by an agency or self-certified.

Good Faith Certification

Prior to receiving a financial assistance agreement, the authorized representative for the EIF project must sign and submit to the EIF an MBE/WBE/SBRA Good Faith Certification (Form 8700-294), which demonstrates that the municipality has met the minimum MBE/WBE/SBRA Good Faith requirements.

SBRAs

If the municipality is receiving funds from the Safe Drinking Water Loan Program, or if the Clean Water Fund Program project is designated as a federal equivalency project, the municipality must make a good faith effort to utilize SBRAs in addition to the MBEs and WBEs. This is in accordance with Section 129 of Public Law 100-590. To comply with the good faith effort requirement, the municipality and primary contractor must implement the six affirmative steps stated in 40 CFR 31.36(e), or 35.6580(a).

SBRA solicitation requirements can be met using option 1, 2 or 3 described above. Although municipalities whose projects are designated federal equivalency are required to solicit SBRAs, there is not an established fair share objective for SBRAs.

Good Faith Effort

A good faith effort by the applicant includes, but is not limited to all of the following:

1. Soliciting bids from qualified MBEs and WBEs whenever contracts and subcontracts are awarded. Solicited businesses shall be provided a reasonable amount of time to respond to requests for bids.
   
   
2. Providing to MBEs and WBEs, upon request, a list of individuals and firms in possession of plans, specifications and other information relevant to the project.
   
   
3. Breaking the construction scope of work into smaller tasks to maximize the opportunity of MBE/WBE/SBRAs to compete for contracts and subcontracts.
   
   
4. Establishing work schedules that enable MBE/WBE/SBRAs to compete for contracts and subcontracts.
   
   
5. Using the assistance of the Department of Natural Resources as appropriate.

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Some Suggestions

1. Include the MBE/WBE/SBRA Contacts Worksheet (Form 8700-294A) and the language from s. NR 162.09(3), s. NR 166.12(4), or s. NR 167.18(4), Wis. Adm. Code, and/or federal requirements in the bidding documents.
   
   
2. Obtain a list(s) of certified MBEs and WBEs. A copy of the list may be included in the bidding documents to show agency certification.
   
   
Ensure that the prime contractors comply with the MBE/WBE/SBRA requirements by the bid opening.


Confirm in writing, through the contract award resolution, whether or not the MBE/WBE/SBRA requirements are satisfied/implemented.

Documentation Review

The EIF project manager assigned to the project will conduct a compliance review to determine whether the fair share objective was met or a good faith effort was made.

Noncompliance with MBE/WBE/SBRA Requirement

If the municipality does not comply with the MBE/WBE/SBRA requirement, the following sanction(s) may be applied to the project.