§ 58.414. Veteran business enterprise program.
(a) Scope. The provisions of this subchapter shall apply to all procurements within the scope of this policy.
(b) Purpose. To attain the VBE aspirational target, the BDISBO, with the cooperation of the issuing agency, shall attempt to set, where required, contract-specific goals for VBE participation. Each contract-specific goal shall be expressed within the solicitation as a percentage of the dollar value of the contract.
(c) Waivers. Bidders or offerors may in all instances request a partial waiver or full waiver of a contract-specific goal for VBE participation as set forth in § 58.415 (relating to good faith efforts waiver).
(d) Contract specific goal setting.
(1) The BDISBO, with the cooperation of the issuing agency, shall assess the potential for VBE participation in each procurement and estimate the amount of participation if any before the solicitation is issued.
(2) In setting a contract-specific goal, the BDISBO and agencies shall follow the minimum requirement as set forth in 51 Pa.C.S. § 9603 (relating to participation goal) and all of the following:
(i) May not set a contract-specific goal that solely relies on the Commonwealth’s overall aspirational target or any other jurisdiction’s overall percentage goal.
(ii) May incorporate an analysis of all of the following:
(A) The potential subcontract opportunities available in the prime contract, which shall include the provision of supplies or services.
(B) The number of VBEs listed in the online searchable database of VBEs or otherwise identified as being certified to provide those subcontract opportunities.
(C) The availability of VBEs to respond competitively to the potential subcontract opportunities, including geographical proximity when relevant and desired work location of VBEs identified under clause (B) to the location of the work to be performed.
(D) The feasibility of subcontracting opportunities given the nature and extent of the proposed contract.
(E) Participation of VBEs on past contracts of similar size, scope and location.
(F) Other factors that contribute to constitutional goal setting.
(e) Solicitation documentation.
(1) Each solicitation containing contract-specific goals for VBE participation shall contain those terms, conditions and forms related to VBE participation as required by the Department.
(2) When a contract-specific goal for VBE participation is set for a procurement, a bidder or offeror shall submit with its bid or proposal a completed VBE participation submittal. A bidder or offeror must indicate one of the following on the VBE participation submittal:
(i) Agreement to meet the contract-specific goal for VBE participation in full. In this instance, a bidder or offeror must provide a VBE utilization schedule which identifies how the bidder or offeror will meet the contract-specific goal.
(ii) Agreement to meet a portion of the contract-specific goal for VBE participation and request a partial waiver for the remainder of the contract-specific goal. In this instance, a bidder or offeror must provide a VBE utilization schedule which identifies how the bidder or offeror will meet a portion of the contract-specific goal and also provide documentation of the bidder or offeror’s good faith efforts waiver to meet the unmet portion of the contract-specific goal for VBE participation. The documentation and determination process for good faith efforts waiver requests for contract-specific goals for VBE participation shall be consistent with the documentation and determination process for good faith efforts waiver requests for contract-specific goals for SDB participation set forth in § 58.415.
(iii) Request for a good faith efforts waiver from all of the contract-specific goals. In this instance, a bidder or offeror must provide documentation of the bidder or offeror’s good faith efforts to meet the contract-specific goals for VBE participation. The documentation and determination process for good faith efforts waiver requests for contract-specific goals for VBE participation shall be consistent with the documentation and determination process for good faith efforts waiver requests for contract-specific goals for SDB participation set forth in § 58.415.
(3) The failure to complete and submit the VBE participation submittal and additional required documentation as set forth in the solicitation documents may result in a determination that the bid or proposal is not responsive.
(f) VBE subcontracting provisions.
(1) A bidder or offeror that is a VBE may satisfy a contract-specific goal for VBE participation through their own self-performance.
(2) When a VBE performs as a participant in a joint venture, the Commonwealth may count a portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the VBE performs with its own forces toward fulfilling the VBE participation goal, subject to the provisions of paragraph (4).
(3) Because the contract-specific goal for VBE participation is independent of any contract-specific goal for SDB participation, work performed by a VBE that is also an SDB can be used to meet both a contract-specific goal for VBE participation and a contract-specific goal for SDB participation through the same work.
(4) For procurements subject to the VBE program, prime contractors may satisfy a contract-specific goal for VBE participation through the use of VBEs in accordance with § 58.412 (relating to small diverse business program) unless otherwise specified in the procurement documents. For procurements subject to the program for construction and design professional services, prime contractors may satisfy a contract-specific goal for VBE participation through the use of VBE subcontractors, manufacturers or suppliers in accordance with § 58.413 (relating to construction and design professional services program) unless otherwise specified in the procurement documents.
(g) Contract requirements.
(1) A prime contractor’s commitments to meet contract-specific goals and to utilize VBEs listed within the VBE utilization schedule shall become contractual obligations of the prime contractor. A prime contractor’s failure to meet the VBE commitments may result in the imposition of sanctions as set forth in § 58.417(d) (relating to compliance with SDB and VBE commitments), 62 Pa.C.S. § 531 (relating to debarment or suspension) and any additional sanctions available under the contract.
(2) Solicitation documents completed and submitted by the selected bidder or offeror in connection with its VBE participation commitments including the VBE participation submittal, VBE utilization schedule and, if applicable, any documentation supporting a request for a good faith efforts waiver shall be made part of the contract.
(h) Subcontract requirements. For procurements subject to the SDB program, the subcontract requirements of § 58.412 apply to the prime contractor commitments to VBEs in the same manner as they apply to commitments to SDBs. For procurements subject to the program for construction and design professional services, the subcontract requirements of § 58.413 apply to the prime contractor commitments to VBEs in the same manner as they apply to the commitments to VBEs.
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