Common use of Termination and Substitution of DBE Subcontractors Clause in Contracts

Termination and Substitution of DBE Subcontractors. ‌ 1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project. 2. The Local Agency stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the Local Agency’s bond requirements. 3. Work requires a contractor's license and listed DBE does not have a valid license under Contractors License Law. 4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination). 5. Listed DBE's work is unsatisfactory and not in compliance with the contract. 6. Listed DBE is ineligible to work on the project because of suspension or debarment. 7. Listed DBE becomes bankrupt or insolvent. 8. Listed DBE voluntarily withdraws with written notice from the Contract 9. Listed DBE is ineligible to receive credit for the type of work required. 10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract. 11. The Agency determines other documented good cause. The prime contractor shall notify the original DBE of the intent to use other forces or material sources and provide the reasons, allowing the DBE 5 days to respond to the notice and advise the prime contractor and the Agency of the reasons why the use of other forces or sources of materials should not occur. The prime contractor’s request to use other forces or material sources must include: 1. One or more of the reasons listed in the preceding paragraph. 2. Notices from the prime contractor to the DBE regarding the request. 3. Notices from the DBEs to the prime contractor regarding the request. If the Agency authorizes the termination or substitution of a listed DBE, the prime contractor must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must (1) perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal, and (2) be certified as a DBE with the most specific available NAICS codes and work codes applicable to the type of work the DBE will perform on the contract at the time of the prime contractor’s request for substitution. The prime contractor shall submit their documentation of good faith efforts within 7 days of their request for authorization of the substitution. The Agency may authorize a 7-day extension of this submittal period at the prime contractor’s request. More guidance can be found at 49 CFR 26 app A regarding evaluation of good faith efforts to meet the DBE goal.

Termination and Substitution of DBE Subcontractors. ‌The prime contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the contractor obtains the County’s written consent. The prime contractor shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without prior written authorization from the County. Unless the County’s prior written consent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 15-G Construction Contract DBE Commitment form, included in the Bid. The County authorizes a request to use other forces or sources of materials if the bidder shows any of the following justifications: 1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project. 2. The Local Agency County stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the Local AgencyCounty’s bond requirements. 3. Work requires a contractor's license and listed DBE does not have a valid license under Contractors License Law. 4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination). 5. Listed DBE's work is unsatisfactory and not in compliance with the contract. 6. Listed DBE is ineligible to work on the project because of suspension or debarment. 7. Listed DBE becomes bankrupt or insolvent. 8. Listed DBE voluntarily withdraws with written notice from the Contract 9. Listed DBE is ineligible to receive credit for the type of work required. 10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract. 11. The Agency County determines other documented good cause. The prime contractor shall notify the original DBE of the intent to use other forces or material sources and provide the reasons, allowing the DBE 5 days to respond to the notice and advise the prime contractor and the Agency County of the reasons why the use of other forces or sources of materials should not occur. The prime contractor’s request to use other forces or material sources must include: 1. One or more of the reasons listed in the preceding paragraph. 2. Notices from the prime contractor to the DBE regarding the request. 3. Notices from the DBEs to the prime contractor regarding the request. If the Agency authorizes the termination or substitution of a listed DBEDBE is terminated or substituted, the prime contractor must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must (1) perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal, and (2) be certified as a DBE with the most specific available NAICS codes and work codes applicable to the type of work the DBE will perform on the contract at the time of the prime contractor’s request for substitution. The prime contractor shall submit their documentation of good faith efforts within 7 days of their request for authorization of the substitution. The Agency may authorize a 7-day extension of this submittal period at the prime contractor’s request. More guidance can be found at 49 CFR 26 app A regarding evaluation of good faith efforts to meet the DBE goal.

Termination and Substitution of DBE Subcontractors. ‌The prime contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the contractor obtains the Agency’s written consent. The prime contractor shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without prior written authorization from the Agency. Unless the Agency’s prior written consent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 15-G Construction Contract DBE Commitment form, included in the Bid. The Agency authorizes a request to use other forces or sources of materials if the bidder shows any of the following justifications: 1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project. 2. The Local Agency stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the Local Agency’s bond requirements. 3. Work requires a contractor's license and listed DBE does not have a valid license under Contractors License Law. 4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination). 5. Listed DBE's work is unsatisfactory and not in compliance with the contract. 6. Listed DBE is ineligible to work on the project because of suspension or debarment. 7. Listed DBE becomes bankrupt or insolvent. 8. Listed DBE voluntarily withdraws with written notice from the Contract 9. Listed DBE is ineligible to receive credit for the type of work required. 10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract. 11. The Agency determines other documented good cause. The prime contractor shall notify the original DBE of the intent to use other forces or material sources and provide the reasons, allowing the DBE 5 days to respond to the notice and advise the prime contractor and the Agency of the reasons why the use of other forces or sources of materials should not occur. The prime contractor’s request to use other forces or material sources must include: 1. One or more of the reasons listed in the preceding paragraph. 2. Notices from the prime contractor to the DBE regarding the request. 3. Notices from the DBEs to the prime contractor regarding the request. If the Agency authorizes the termination or substitution of a listed DBE, the prime contractor must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must (1) perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal, and (2) be certified as a DBE with the most specific available NAICS codes and work codes applicable to the type of work the DBE will perform on the contract at the time of the prime contractor’s request for substitution. The prime contractor shall submit their documentation of good faith efforts within 7 days of their request for authorization of the substitution. The Agency may authorize a 7-day extension of this submittal period at the prime contractor’s request. More guidance can be found at 49 CFR 26 app A regarding evaluation of good faith efforts to meet the DBE goal.