Certified Business Enterprise Program Needs Revamping Overall
By Councilmember David Grosso and Christina Henderson
Anyone who has ever experienced the contract and procurement process for the District government knows it is not for the faint-of-heart. Governed by an elaborate maze of rules and sometimes the rather subjective interpretation of the rules, procurement requires organization, advanced planning, interpersonal skills, patience, and a healthy dose of persistence. After only ten months on the job, Councilmember Grosso has probed a dozen of areas where the District's procurement practice could be improved, but, chief among those would be the Certified Business Enterprise (CBE) program. He is not alone in this critique.
As many of you know, the District requires that all construction and non-construction contracts over $250,000 have at least 35 percent of the total dollar amount be subcontracted to a small business enterprise. When we first learned of this requirement working on procurement issues, we could not believe this was a blanket rule even for non-construction contracts. Sure, an agency can seek a waiver from the Department of Small and Local Business Development (DSLBD) if it cannot reach the 35 percent threshold, but as general practice, the blanket rule applies without regard to the needs of a particular scope of work. The recent dust-up over District's instant tickets lottery games contract which lapsed on July 20 is a perfect example of how complicated this can be for businesses. When the vendor, Scientific Games International, reported that it was unable to meet the 35 percent requirement because the majority of its costs—printing and delivery of the tickets—could not be subcontracted, it was suggested at a Council hearing in June that the Office of the Chief Financial Officer (the contract administrator in this case) "expand" the scope of work to make it easier for vendors to meet the 35 percent. In other words, there was suggestion that a D.C. contractor create the need for more work, that's not needed, thereby costing taxpayers more. With OCFO choosing to rebid the contract, it seems they went that route. This is the very thing that frustrates people about government—waste. (Update: Since publishing this blog, we have learned that OCFO rebid the lottery contract using the original scope of work. Only one vendor has bid; it was not Scientific Games International.)
The instant ticket contract debacle peaked our interest about the District's CBE program. Perhaps, we thought, the 35 percent requirement is tied to some sort of evidence-based look at the disparity in utilizing local small businesses for District contracts and best-practices around the country. However, the Council's recent attempt to raise the subcontracting requirement to 50 percent for construction contracts, made it evident that policy making for the CBE program has been far more arbitrary than anyone would admit.
Across the country, hundreds of cities and counties have small business enterprise programs in place. We examined the laws/ordinances, policies and practices that govern 15 localities to see if there are any lessons to be learned and shared. There were differences among each of the cities. For example, some cities business enterprise programs are only for minority or women-owned businesses. Others only establish subcontractor participation requirements for construction contracts, and not professional services or purchasing. However, there are two major practices that would be helpful for the District to adopt.
Citywide Goals. All 15 cities and counties we examined have two different types of participation goals when it comes to their business enterprise programs – citywide goals and contract goals. Citywide goals are generally set annually by the local governing body to determine what percentage of contracting dollars they would like to see awarded to local businesses that fiscal year. In some cities, the participation goals differ based on type of contracts, as well as classification of the business. They are not summarily adopted as goals for individual procurements. More importantly, the goals are informed by the current business climate in the city. Philadelphia's Code, for example, requires that their annual participation goals be based in part on: (1) the present availability of qualified disadvantaged business enterprises (DBE's); (2) the utilization of qualified DBEs in past contracts awarded by the City; (3) a forecast of eligible contracts to be awarded within the fiscal year; and (4) an updated Disparity Analysis of businesses in the Philadelphia area. From New York City to Milwaukee, WI to Orlando, FL, they all have similar methods for setting their participation goals. As with any strategic planning effort, this allows for regular evaluation of the progress of the business enterprise program using accumulated data to determine whether specific program provisions require modification, expansion, or curtailment.
Contract Goals. The District's blanket 35 percent subcontracting requirement for contracts over $250,000 stood out as an anomaly that appears to lack substance. Fourteen of the fifteen cities we studied set their goals contract-by-contract. In Denver, CO, the City enlists the help of 3 committees –Construction Goals Committee, Heavy Highway Goals Committee, and Professional Services Goals Committee – to help determine the various business enterprise participation goals for projects. So far this year, there have been goal determinations set as high as 40 percent.
In Houston, TX, the Office of Business Opportunity reviews scopes of work to determine specific participation goals based on a calculation that includes among other things available qualified businesses and past levels of utilization for similar contracts. In January, the New York City Council amended its business enterprise law to require that each agency set goals for individual procurements based in part by "the citywide goals and the agency's annual utilization plan, the size and nature of the procurement, and the availability of MBEs, WBEs and EBEs with the capacity to perform the specific types and scale of work involved in its procurements." This type of approach seems to have worked well for these cities. Not only do the businesses appreciate that the goals are not arbitrary and therefore achievable, it requires the city to have a strong understanding of what's happening in its small business community.
Tomorrow, the Committee on Business, Consumer, and Regulatory Affairs will hold a public hearing on two bills related to the District's CBE program, the Certified Business Enterprise Program Enhanced Reform Amendment Act of 2013 (B20-422) and the Small and Certified Business Enterprise Development and Assistance Amendment Act of 2013 (B20-181). Both bills include some necessary enhancements, but without addressing the way in which we establish participation goals for our local businesses the program will continue to have problems. See a quick glimpse of how D.C.'s CBE program stacks up against other cities around the country:
Grosso Demands Stronger Oversight of Contracts
I write today to support Councilmember Kenyan McDuffie, Chairman of the Committee on Government Operations, in his effort to pass a campaign finance reform bill that includes repealing council votes on contracts over $1 million. For the past 11 months, I have taken a stand against this federally mandated Council requirement, and voted "present" on contracts that come before us. Continuous interference with the procurement process by the Council leads to an appearance of corruption that taints the Council's credibility.
I am concerned that the contracting and procurement process is degraded and not enhanced by councilmembers voting on every contract over $1 million. The main purpose of contracting and procurement is to have a confidential process to ensure that the bids submitted for approval are shielded from political influence. The contract should be awarded to the company that presents the best bid and not simply to the company that has the most political connections. Throughout my time on the Council I have executed strong oversight of contracts being awarded by the Mayor's agencies. I have met with all interested parties and required follow-up reporting once the contracts have been awarded. I will continue to demand vigorous oversight of every contract as it is implemented.
We must ensure that the contracting process in the District of Columbia is fair and efficient.
We also must ensure that councilmembers do not have the opportunity to improperly influence the contracting process to benefit their friends and campaign donors.
Why D.C. needs public campaign financing
My Op-Ed on "Why D.C. needs public campaign financing" was featured in the Washington Post this past Sunday. It is clear that the moment has come for comprehensive campaign finance reform. Please share to get the conversation started. Also note that Councilmember McDuffie will hold a public roundtable on public financing of campaigns on Thursday, July 11, 2013 at 11:00 a.m. in room 500 of the John A. Wilson Building located at 1350 Pennsylvania Avenue N.W.
The presence of corporate dollars flowing into D.C. elections has corrupted our electoral system and failed our residents. The system has fallen out of balance, and forces with something to gain from political influence have come to badly outweigh the interests of ordinary citizens. The solution is to increase the number of engaged residents who have a stake in ethical leaders. Fair Elections D.C., a bill that I have proposed with council member Kenyan McDuffie (D-Ward 5), can help restore this balance between residents and corporate interests.
To read more, click here.
To read more about campaign finance and why I vote no on contracts, click here:
Help Clean Up D.C. with Fair Elections Legislation, Washington Post
D.C. Development: Fixing the System, WAMU
Curtail D.C. Council power over contracts, Washington Post
Pol protests D.C. Council contract vote, Washington Examiner