NY Exec L § 314 (2021)
2021 New York Laws EXC - Executive Article 15-A - Participation by Minority Group Members and Women With Respect to State Contracts 314 - Statewide Certification Program.

* § 314. Statewide   certification  program.  1.  The  director  shall promulgate rules and regulations providing for the  establishment  of  a statewide   certification   program   including  rules  and  regulations governing the approval, denial or revocation of any  such  certification including  revocations  for convictions for fraudulently misrepresenting the status of minority or women-owned business enterprises.  Such  rules shall  set  forth  the  maximum  personal  net worth of a minority group member or woman who may be relied  upon  to  certify  a  business  as  a minority-owned  business  enterprise  or women-owned business enterprise with a minimum personal net worth threshold of fifteen million  dollars, and  may  thereafter  establish different maximum levels of personal net worth for minority group members and women  on  an  industry-by-industry basis  for  such  industries  as  the  director  shall  determine.  Such regulations relating to the classification of  the  industry-by-industry personal net worth thresholds above the fifteen million dollar threshold shall  consider  the  personal net worth of the owners of both certified and non-certified  businesses,  including  but  not  limited  to,  prime contractors and subcontractors, as well as any such other factors needed to  establish such thresholds. Such rules and regulations shall include, but not be limited to, such matters as may be required  to  ensure  that the  established  procedures  thereunder shall at least be in compliance with the code of fair procedure set forth in  section  seventy-three  of the civil rights law.   2.  For  the purposes of this article, the office shall be responsible for verifying businesses as being owned,  operated,  and  controlled  by minority  group  members  or  women  and  for  certifying  such verified businesses.  The  director  shall  prepare  a  directory  of   certified businesses  for  use by contracting agencies and contractors in carrying out the provisions of this article. The director shall periodically, but no less than annually, update the directory.   2-a. (a) The director shall establish a procedure enabling the  office to  accept New York municipal corporation certification verification for minority and women-owned  business  enterprise  applicants  in  lieu  of requiring the applicant to complete the state certification process. The director  shall  promulgate  rules and regulations to set forth criteria for the acceptance of municipal corporation certification. All  eligible municipal  corporation certifications shall require business enterprises seeking certification to meet the following standards:  (i) have at least fifty-one percent  ownership  by  a  minority  or  a women-owned  enterprise  and  be  owned  by  United  States  citizens or permanent resident aliens;  (ii) be an enterprise in which  the  minority  and/or  women-ownership interest is real, substantial and continuing;  (iii)  be  an  enterprise in which the minority and/or women-ownership has and exercises the authority to control independently the  day-to-day business decisions of the enterprise;  (iv) be an enterprise authorized to do business in this state;  (v)  be  subject to a physical site inspection to verify the fifty-one percent ownership requirement;  (vi) be owned  by  an  individual  or  individuals,  whose  ownership, control and operation are relied upon for certification, with a personal net  worth  that  does not exceed fifteen million dollars and such other amount as the director shall  set  forth  in  regulations,  as  adjusted annually for inflation according to the consumer price index; and  (vii)   be  an  enterprise  that  is  a  small  business  pursuant  to subdivision twenty of section three hundred ten of this article.  (b) The director shall work with all municipal corporations that  have a  municipal  minority  and  women-owned  business enterprise program to  develop standards to accept state certification to  meet  the  municipal corporation  minority  and women-owned business enterprise certification standards.  (c)  The director shall establish a procedure enabling the division to accept federal certification verification for minority  and  women-owned business  enterprise  applicants,  provided  said standards comport with those required by the state minority and women-owned  business  program, in  lieu  of requiring the applicant to complete the state certification process. The director shall promulgate  rules  and  regulations  to  set forth criteria for the acceptance of federal certification.   2-b.  The  director  shall establish a procedure enabling an applicant who was a military service member to prove his or her race or ethnicity, date of birth, place of birth and verification of address  for  purposes of  certification  of  the  applicant's  business  as  a  minority-owned business by submission of the DD Form 214 issued to the applicant by the United States department of defense upon  such  applicant's  retirement, separation,  or  discharge  from  active duty in the armed forces of the United States, provided the DD Form 214 contains  such  information,  in lieu  of  requiring  the applicant to otherwise prove his or her race or ethnicity. The director shall promulgate rules and  regulations  to  set forth criteria for the acceptance of the DD Form 214 by the office.   2-c.  (a)  Each business applying for minority or women-owned business enterprise certification pursuant to this section must agree  to  allow: (i)  the department of taxation and finance to share its tax information with the division; and (ii) the department of labor to share its tax and employer information with the division.  (b) Such information  provided  pursuant  to  paragraph  (a)  of  this subdivision   shall  be  kept  confidential  by  the  division  as  such information is kept by the department of taxation  and  finance  or  the department  of labor and use of such information shall be limited to the certification application process, or other uses approved  or  consented to by the business enterprise or applicant.   3.  Following  application for certification pursuant to this section, the director shall provide the applicant  with  written  notice  of  the status   of   the  application,  including  notice  of  any  outstanding deficiencies,  within  twenty-one  days.  Within  forty-five   days   of submission  of a final completed application, the director shall provide the applicant with written notice  of  a  determination  by  the  office approving  or denying such certification and, in the event of a denial a statement  setting  forth  the  reasons  for   such   denial.   Upon   a determination denying or revoking certification, the business enterprise for  which  certification  has  been  so  denied  or revoked shall, upon written request made within thirty days from receipt of notice  of  such determination,  be  entitled  to a hearing before an independent hearing officer designated for such purpose by the director. In the event that a request for a hearing is not made within such thirty  day  period,  such determination  shall  be  deemed  to  be  final. The independent hearing officer shall conduct a hearing and upon the conclusion of such hearing, issue a written recommendation to the director  to  affirm,  reverse  or modify  such  determination of the director. Such written recommendation shall be issued to the parties. The director,  within  thirty  days,  by order,  must accept, reject or modify such recommendation of the hearing officer and set forth in writing  the  reasons  therefor.  The  director shall  serve a copy of such order and reasons therefor upon the business enterprise by personal service  or  by  certified  mail  return  receipt requested. The order of the director shall be subject to review pursuant to article seventy-eight of the civil practice law and rules.    4.  The  director  may,  after performing an availability analysis and upon a finding that industry-specific factors coupled with personal  net worth   or   small   business   eligibility   requirements  pursuant  to subdivisions nineteen and twenty of section three hundred  ten  of  this article,   respectively,  have  led  to  the  significant  exclusion  of businesses owned by minority group members or women  in  that  industry, grant  provisional  MWBE  certification  status  to applicants from that designated industry,  provided,  however,  that  all  other  eligibility requirements  pursuant  to subdivision seven or fifteen of section three hundred  ten  of  this  article,  as  applicable,  are  satisfied.   Any industry-based  determination  made  under  this section by the director shall be  made  widely  available  to  the  public  and  posted  on  the division's website.   5.  With  the exception of provisional MWBE certification, as provided for in subdivision twenty-three of section three  hundred  ten  of  this article, all minority and women-owned business enterprise certifications shall be valid for a period of five years.   * NB Repealed December 31, 2024