Common use of Good Faith Efforts Clause in Contracts

Good Faith Efforts. MnDOT Office of Civil Rights will review each responder’s GFE documents and the TGB and VET commitment to determine the responder's commitment rate. MnDOT Office of Civil Rights will review the good faith effort documents and determine whether a responder that did not meet the goal made adequate good faith efforts to meet the goal. The responder must demonstrate that it took all necessary and reasonable steps to achieve the TGB and VET goals. Necessary and reasonable steps are those efforts that, by their scope, intensity, and appropriateness, could reasonably be expected to obtain sufficient participation, even if the efforts were not fully successful. MnDOT will consider the quality, quantity, and intensity of the efforts that the responder has made. The efforts by the responder should be efforts that one could reasonably expect a responder to take if the responder were actively and aggressively trying to obtain TGB and VET participation sufficient to meet the contract goals. MnDOT will not consider mere pro forma efforts to be made in good faith. In evaluating the responder’s adequate good faith efforts, MnDOT will consider the following list of actions. This is not an all-inclusive list, and other factors or types of efforts may be relevant. The Department will decide on a case-by-case basis if the responder made adequate good faith efforts. Solicitation – Soliciting through all reasonable and available the interest of eligible TGBs and VETs that have the capability to perform the work of the contract. This includes, for example, following up with firms in attendance at pre-proposal meetings, advertising opportunities to subcontract, or providing written notices to firms identified through the TGB/VET directories. The responder must solicit interest within sufficient time to allow the TGBs and VETs to respond to the solicitation. The responder must determine with certainty if the TGBs and VETs are interested by taking appropriate steps to follow-up from initial solicitations. Selection of Work – Selecting portions of the work to be performed by TGBs and VETs in order to increase the likelihood that the project goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate TGB and VET participation, even when the prime contractor might otherwise perform these work items with its own forces. Providing Information and Assistance – Providing interested TGBs and VETs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. Negotiation – Negotiating in good faith with interested TGBs and VETs. Evidence of negotiation includes the names, addresses, and telephone numbers of TGBs and VETs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for TGB and VETs to perform the work. A responder using good business judgment would consider a number of factors in negotiating with subcontractors, including TGB and VET subcontractors, and would take a firm’s price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using TGBs and Veteran businesses is not in itself sufficient reason for the responder’s failure to meet the contract TGB or VET goal, as long as such costs are reasonable. Also the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the responder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from TGBs and VETs if the price difference is excessive or unreasonable. Rejection of TGBs or VETs – Not rejecting TGBs or VETs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The TGB’s or VET’s rank within its industry, membership in specific groups, organizations, or associates and political or social affiliations (for example, union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of TGBs or VETs in the responder’s efforts to meet the project goal(s).