|
15920 Federal Register / Vol . 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations
<br /> § 33 ,404 When must a recipient negotiate number of all businesses to derive a extent it can be related to the
<br /> fair share objectives with EPA? base figure for the relative availability of opportunities for MBEs and WBEs to
<br /> A recipient must submit its proposed MBEs and WBEs in the market, perform in the program ,
<br /> MBE and WBE fair share objectives and ( 2 ) Data from a Disparity Study. Use ( 3 ) If a recipient attempts to make an
<br /> supporting documentation to EPA a percentage figure derived from data in adjustment to its base figure to account
<br /> within 120 days after its acceptance of a valid , applicable disparity study for the continuing effects of past
<br /> its financial assistance award . EPA must conducted within the preceding ten discrimination ( often called the " but
<br /> respond in writing to the recipient ' s years comparing the available MBEs and for " factor) or the effects of another
<br /> submission within 30 days of receipt, WBEs in the relevant geographic market ongoing MBE/WBE program , the
<br /> either agreeing with the submission or with their actual usage by entities adjustment must be based on
<br /> providing initial comments for further procuring in the categories of demonstrable evidence that is logically
<br /> negotiation . Failure to respond within construction , equipment , services , and and directly related to the effect for
<br /> this time frame may be considered as supplies , which the adjustment is sought.
<br /> agreement by EPA with the fair share { 3 ) The Objective of Another EPA § 33.406 Maya recipient designate a lead
<br /> objectives submitted by the recipient . Recipient . A recipient may use , as its agency for fair share objective negotiation
<br /> MBE and WBE fair share objectives base figure , the fair share objectives of purposes ?
<br /> must be agreed upon by the recipient another EPA recipient if the recipient. If an Indian Tribal , State or local
<br /> and EPA before funds may be expended demonstrates that it will use the same , Government has more than one agency
<br /> for procurement under the recipient ' s or substantially similar , relevant that receives EPA financial assistance ,
<br /> financial assistance agreement. geographic market as the other EPA
<br /> recipient. (See § 33 . 411 for exemption the agencies within that Government
<br /> § 33.405 How does a recipient determine from fair share objective negotiations ) , may designate a lead agency to negotiate
<br /> its fair share objectives ? (4 ) Alternative Methods . Subject to MBE and WBE fair share objectives with
<br /> ( a) A recipient must determine its fair EPA approval , other methods may be EPA to be used by each of the agencies .
<br /> share objectives based on demonstrable used to determine a base figure for the Each agency must otherwise negotiate
<br /> evidence of the number of certified overall objective . Any methodology with EPA separately its own MBE and
<br /> MBEs and WBEs that are ready , willing , chosen must be based on demonstrable WBE fair share objectives ,
<br /> and able to perform in the relevant evidence of local market conditions and
<br /> market for each of the four § are o How long remain
<br /> MBE and ? fair
<br /> geographic be designed to ultimately attain an share objectives remain in effect?
<br /> procurement categories (equipment, objective that is rationally related to the Once MBE and WBE fair share
<br /> construction, services , and supplies ) . relative availability of MBEs and WBEs objectives have been negotiated , they
<br /> The relevant geographic market is the in the relevantgeographic market .
<br /> area of solicitation for the procurement C will remain in effect for three fiscal
<br /> as determined b the recipient. The O Step 2 . After calculating a base years unless there are significant
<br /> Y P figure , a. recipient must examine the changes to the data supporting the fair
<br /> market may be a geographic region of a evidence available in its jurisdiction to share objectives . The fact that a
<br /> State , an entire State , or a multi - State determine what adjustment , if any , is disparity study utilized in negotiating
<br /> area , Fair share objectives must reflect needed to the base figure in order to fair share objectives has become more
<br /> the recipient ' s determination of the arrive at the fair share objective . than ten vears old during the three-year
<br /> level of MBE and WBE participation it ( 1 ) There are many types of evidence
<br /> would expect absent the effects of that must be considered when adjusting period does not by itself Constitute a
<br /> discrimination . A recipient may the base figure . These include : significant change requiring
<br /> renegotiation .
<br /> combine the four procurement ( i) The current capacity of MBEs and
<br /> categories into one weighted objective WBEs to perform contract work under § 33.408 Maya recipient use race and/or
<br /> for MBEs and one weighted objective for EPA financial assistance agreements , as gender conscious measures as part of this
<br /> WBEs . measured by the volume of work MBEs program ?
<br /> (b) Step 1 . A recipient must first and WBEs have performed in recent (a) Should the good faith efforts
<br /> determine a base figure for the relative years ; described in subpart C of this part or
<br /> availability of MBEs and WBEs , The (ii ) Evidence from disparity studies other race and/ or gender neutral
<br /> following are examples of approaches conducted anywhere within the measures prove to be inadequate to
<br /> that a recipient may take , Any recipient' s jurisdiction , to the extent it achieve an established fair share
<br /> percentage figure derived from one of is not alreadv accounted for in the base objective , race and/ or gender conscious
<br /> these examples should be considered a figure ; and action (e . g . , apply the subcontracting
<br /> basis from which a recipient begins (iii ) If the base figure is the objective suggestion in § 33 . 301 ( c) to MBEs and
<br /> when examining evidence available in of another EPA recipient , it must be WBEs ) is available to a recipient and its
<br /> its jurisdiction. adjusted for differences in the local prime Contractor to more Close /}
<br /> ( 1 ) MBE and WBE Directories and market and the recipient ' s contracting achieve the fair share objectives , subject
<br /> Census Bureau Data . Separately program . to § 33 .409 , Under no circumstances are
<br /> determine the number of certified MBEs ( 2 ) A recipient may also consider race and/ or gender conscious actions
<br /> and WBEs that are ready , willing , and available evidence from related fields re u ' red by EPA.
<br /> able to perform in the relevant that affect the opportunities for MBEs W ) Any use of race and/ or gender
<br /> geographic market for each procurement and WBEs to form , grow and compete . conscious efforts must not result in the
<br /> category from a MBE /WBE directory , These include , but are not limited to : selection of an unqualified MBE or
<br /> such as a bidder' s list, using the Census (f) Statistical disparities in the ability WBE ,
<br /> Bureau ' s County Business Pattern (CBP) of MBEs and WBEs to get the financing ,
<br /> database , determine the number of all bonding and insurance required to § 33.409 Maya recipient use quotas as
<br /> qualified businesses available in the participate ; and part of this program?
<br /> market that perform work in the same (ii ) Data on employment, self- A recipient is not permitted to use
<br /> procurement category . Separately divide employment, education, training and quotas in procurements under EPA ' s 8 %
<br /> the number of MBEs and WBEs by the union apprenticeship programs , to the or 10 °i° statute .
<br />
|