What constitutes good faith efforts and who must make them?

G.S. 143-128.2 creates specific requirements for both owners (public agencies) and bidders to satisfy the good faith efforts obligations. Subsection (e) outlines steps a public agency must take before awarding a contract. They include developing and implementing a minority business outreach plan, attending prebid conferences, and providing notice to minority businesses at least ten days prior to bid opening. The statute specifies what information must be included in the notice.

Subsection (f) sets out steps that bidders must take to satisfy the good faith efforts requirements. There are ten activities listed in the statute from which bidders may choose in carrying out their obligations under the law. Each activity is assigned a value of ten or more points. The total number of points is used to determine whether a sufficient effort has been made. A minimum of fifty points is required if the goal is not met. The statute allows any public agency to require additional efforts in its bid specifications.

Under G.S. 143-128.2(c) all bidders (including first-tier subcontractors on construction manager at risk projects) must identify on their bids the minority businesses that they will use on the project and the total dollar value of the bid that will be performed by minority businesses. They must also include an affidavit listing the good faith efforts they have made under subsection (f). If contractors intend to perform all of the work with their own forces, they may submit an affidavit to that effect instead of providing the otherwise required information on minority participation and good faith efforts. A bidder must provide either (1) an affidavit describing the portion of the work to be executed by minority businesses, expressed as a percentage of the total contract amount, showing a percentage equal to or more than the applicable goal on the project, or (2) documentation of good faith efforts to meet the goal, “including any advertisements, solicitations, and evidence of other specific actions demonstrating recruitment and selection of minority businesses for participation in the contract.” G.S. 143-128.2(c)(1)(b). The law states that an affidavit showing participation equal to or greater than the applicable goal “shall give rise to a presumption that the bidder has made the required good faith effort.” G.S. 143-128.2(c)(1)(a). Failure to provide the affidavit or documentation required to demonstrate good faith efforts is grounds for rejection of a bid.