Washington Administrative Code › Title 468 - Transportation, Department of (See Title 88) › Chapter 468-19 - Minority and women business enterprises enforceable goals program › Section 468-19-020 - Commercially useful function (CUF)

Current through Register Vol. 24-14, July 15, 2024
(1) A
			 MWBE performs a CUF when it is responsible for execution of the work of the
			 contract and is carrying out its responsibilities by performing, managing, and
			 supervising the work involved. To perform a CUF, the MWBE must also be
			 responsible, with respect to materials and supplies used on the contract, for
			 negotiating price, determining quality and quantity, ordering the material, and
			 installing (where applicable) and paying for the material itself. Paying for
			 materials are subject to the joint check rules established herein.
(2) A MWBE does not perform a CUF if its role
			 is limited to that of an extra participant in a transaction, contract, or
			 project through which funds are passed to obtain the appearance of MWBE
			 participation.
(3) If a MWBE does
			 not perform or exercise responsibility for at least 30 percent of the total
			 cost of its contract with its own workforce, or the MWBE subcontracts a greater
			 portion of the work of a contract than would be expected on the basis of normal
			 industry practice for the type of work involved, WSDOT will presume it is not
			 performing a commercially useful function.
(4) When a MWBE is presumed not to be
			 performing a CUF pursuant to subsection (3) of this section, the MWBE may
			 present evidence to rebut this determination. It may be determined that the
			 firm is performing a CUF given the type of work involved and normal industry
			 practices.
(5) The following
			 factors are used in determining whether a MWBE trucking company is performing a
			 commercially useful function:
(a) The MWBE
			 must be responsible for the management and supervision of the entire trucking
			 operation for which it is responsible on a particular contract, and there
			 cannot be a contrived arrangement for the purpose of meeting MWBE
			 goals.
(b) The MWBE must itself own
			 and operate at least one fully licensed, insured, and operational truck used on
			 the contract.
(c) The MWBE receives
			 credit for the total value of the transportation services it provides on the
			 contract using trucks it owns, insures, and operates using drivers it
			 employs.
(d) The MWBE may lease
			 trucks from another MWBE firm, including an owner-operator who is certified as
			 a MWBE. The MWBE who leases trucks from another MWBE receives credit for the
			 total value of the transportation services the lessee MWBE provides on the
			 contract.
(e) The MWBE may also
			 lease trucks from a non-MWBE firm, including from an owner-operator. The MWBE
			 that leases trucks equipped with drivers from a non-MWBE is entitled to credit
			 for the total value of transportation services provided by non-MWBE leased
			 trucks equipped with drivers not to exceed the value of transportation services
			 on the contract provided by MWBE-owned trucks or leased trucks with MWBE
			 employee drivers. Additional participation by non-MWBE owned trucks equipped
			 with drivers receives credit only for the fee or commission it receives as a
			 result of the lease arrangement. If a recipient chooses this approach, it must
			 obtain written consent from the WSDOT office of equity and civil rights.
(i) The MWBE may lease trucks without drivers
			 from a non-MWBE truck leasing company. If the MWBE leases trucks from a
			 non-MWBE truck leasing company and uses its own employees as drivers, it is
			 entitled to credit for the total value of these hauling services.
(ii) For purposes of this paragraph, a lease
			 must indicate that the MWBE has exclusive use of and control over the truck.
			 This does not preclude the leased truck from working for others during the term
			 of the lease with the consent of the MWBE, so long as the lease gives the MWBE
			 absolute priority for use of the leased truck. Leased trucks must display the
			 name and identification number of the MWBE.