NY Exec L § 313 (2021)
2021 New York Laws EXC - Executive Article 15-A - Participation by Minority Group Members and Women With Respect to State Contracts 313 - Opportunities for Minority and Women-Owned Business Enterprises.

* § 313. Opportunities   for   minority   and   women-owned   business enterprises. 1. Goals and requirements  for  agencies  and  contractors. Each  agency  shall  structure procurement procedures for contracts made directly or indirectly to minority and women-owned business enterprises, in accordance with the findings of the disparity study, consistent  with the  purposes  of  this  article,  to attempt to achieve the recommended results with  regard  to  total  annual  statewide  procurement  in  the following industries:  (a)   construction  industry  for  certified  minority-owned  business enterprises;  (b)  construction  industry   for   certified   women-owned   business enterprises;  (c)  construction related professional services industry for certified minority-owned business enterprises;  (d) construction related professional services industry for  certified women-owned business enterprises;  (e)   non-construction   related   services   industry  for  certified minority-owned business enterprises;  (f)  non-construction  related   services   industry   for   certified women-owned business enterprises;  (g)   commodities   industry  for  certified  minority-owned  business enterprises;  (h)  commodities   industry   for   certified   women-owned   business enterprises;  (i)  overall  agency  total  dollar value of procurement for certified minority-owned business enterprises;  (j) overall agency total dollar value  of  procurement  for  certified women-owned business enterprises; and  (k)  overall  agency  total  dollar value of procurement for certified minority, women-owned business enterprises.   1-a. The director  shall  ensure  that  each  state  agency  has  been provided with an electronic copy of the disparity study.   1-b.  Each  agency shall develop and adopt agency-specific goals based on the findings of the disparity study.   1-c. The goals set pursuant to subdivision one of this  section  shall be consistent with the findings of the disparity study.   2.  The  director  shall  promulgate  rules  and  regulations based on subdivision one of this section and the findings of the disparity  study that  provide  measures and procedures to ensure that certified minority and women-owned businesses shall be given the  opportunity  for  maximum feasible  participation  in  the  performance  of state contracts and to assist in the agency's identification of those state contracts for which minority and women-owned certified businesses may best bid  to  actively and   affirmatively  promote  and  assist  their  participation  in  the performance  of  state  contracts  so  as  to  facilitate  the  agency's achievement  of  the  maximum  feasible  portion  of the goals for state contracts to such businesses.   2-a. The director shall promulgate rules  and  regulations  that  will accomplish the following:  (a)  provide for the certification and decertification of minority and women-owned business enterprises  for  all  agencies  through  a  single process that meets applicable requirements;  (b) require that each contract solicitation document accompanying each solicitation  set  forth the expected degree of minority and women-owned business enterprise participation based, in part, on:  (i) the potential subcontract opportunities  available  in  the  prime procurement contract;  (ii)  the  availability,  as  contained within the study, of certified minority and women-owned business enterprises to  respond  competitively to   the   potential  subcontract  opportunities  as  reflected  in  the division's directory of  certified  minority  and  women-owned  business enterprises; and  (iii) the findings of the disparity study;  (c)  require  that  each  agency  provide  a current list of certified minority business enterprises to each prospective contractor  or  direct them  to  the division's directory of certified minority and women-owned business enterprises for such purpose;  (d)  allow  a  contractor  that  is  a  certified  minority-owned   or women-owned  business  enterprise  to  use  the work it performs to meet requirements for use of certified minority-owned or women-owned business enterprises as subcontractors;  (e) establish criteria for agencies to  credit  the  participation  of minority and women-owned business enterprises towards the achievement of the  minority and women-owned business enterprise participation goals on a state contract based on the commercially useful function  provided  by each minority and women-owned business enterprise on the contract;  (f)  provide  for  joint  ventures,  which  a  bidder may count toward meeting its minority and women-owned business enterprise participation;  (g) consistent with subdivision  six  of  this  section,  provide  for circumstances  under  which  an  agency  may  waive  obligations  of the contractor relating to  minority  and  women-owned  business  enterprise participation;  (h)  require  that  an  agency  verify  that  minority and women-owned business  enterprises  listed  in  a   successful   bid   are   actually participating  to the extent listed in the project for which the bid was submitted;  (i) provide for the collection of  statistical  data  by  each  agency concerning   actual   minority   and   women-owned  business  enterprise participation;  (j) require each agency to consult the most  current  disparity  study when  calculating  agency-wide and contract specific participation goals pursuant to this article; and   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, and may 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.  The  provisions  of  the   regulations pertaining  to  personal  net worth shall, to the extent practicable, be implemented by June thirtieth, two thousand twenty  and  shall  consider adjustments for inflation annually on January first of the previous year according to the consumer price index.   3.  Solely for the purpose of providing the opportunity for meaningful participation by  certified  businesses  in  the  performance  of  state contracts  as  provided  in  this section, state contracts shall include leases of real property by a state agency to a lessee where:  the  terms of  such  leases  provide for the construction, demolition, replacement, major repair or renovation of real property and improvements thereon  by such lessee; and the cost of such construction, demolition, replacement,  major  repair  or  renovation  of real property and improvements thereon shall exceed the sum of one hundred thousand  dollars.  Reports  to  the director pursuant to section three hundred fifteen of this article shall include activities with respect to all such state contracts. Contracting agencies  shall  include or require to be included with respect to state contracts for the acquisition,  construction,  demolition,  replacement, major  repair  or  renovation of real property and improvements thereon, such provisions as may be necessary to effectuate the provisions of this section in every bid specification and state  contract,  including,  but not  limited  to:  (a)  provisions  requiring contractors to make a good faith effort to solicit active participation by  enterprises  identified in  the  directory of certified businesses; (b) requiring the parties to agree as a condition of entering into such contract, to be bound by  the provisions  of  section  three  hundred sixteen of this article; and (c) requiring  the  contractor  to  include  the  provisions  set  forth  in paragraphs  (a)  and  (b)  of this subdivision in every subcontract in a manner that the provisions will be binding upon each subcontractor as to work in connection with such contract. Provided, however, that  no  such provisions  shall  be  binding upon contractors or subcontractors in the performance of work or the provision of  services  that  are  unrelated, separate  or distinct from the state contract as expressed by its terms, and nothing  in  this  section  shall  authorize  the  director  or  any contracting  agency  to  impose  any  requirement  on  a  contractor  or subcontractor except with respect to a state contract.   4. In the implementation of this section, the contracting agency shall (a) consult the findings contained within the disparity study evidencing relevant industry specific disparities in the  utilization  of  minority and women-owned businesses relative to their availability;  (b)  implement  a program that will enable the agency to evaluate each contract  to  determine  the  appropriate  goal  for  participation   by minority-owned    business    enterprises   and   women-owned   business enterprises;  (c) consider  where  practicable,  the  severability  of  construction projects and other bundled contracts; and  (d)  consider  compliance  with  the  requirements  of any federal law concerning  opportunities  for   minority   and   women-owned   business enterprises   which   effectuates  the  purpose  of  this  section.  The contracting  agency  shall  determine  whether  the  imposition  of  the requirements  of  any such law duplicate or conflict with the provisions hereof and if such  duplication  or  conflict  exists,  the  contracting agency  shall  waive  the applicability of this section to the extent of such duplication or conflict.   5. (a) Contracting agencies shall administer the rules and regulations promulgated by the director in  a  good  faith  effort  to  achieve  the maximum  feasible  participation  by  minority  and women owned business enterprises adopted pursuant to this article and the regulations of  the director.  Such  rules  and  regulations:  shall require a contractor to submit a utilization plan after bids are opened, when bids are required, but  prior  to  the  award  of  a  state  contract;  shall  require  the contracting  agency  to  review  the  utilization  plan submitted by the contractor  and  to  post  the  utilization  plan  and  any  waivers  of compliance  issued  pursuant  to  subdivision six of this section on the website of the contracting agency; shall require the contracting  agency to notify the contractor in writing within a period of time specified by the  director  as  to  any  deficiencies  contained  in the contractor's utilization plan; shall require remedy thereof within a period  of  time specified  by  the  director;  shall  require  the  contractor to submit periodic compliance reports relating to the operation and implementation  of any utilization plan; shall not allow any automatic waivers but shall allow a contractor to apply  for  a  partial  or  total  waiver  of  the minority  and women-owned business enterprise participation requirements pursuant  to  subdivisions  six and seven of this section; shall allow a contractor to file a complaint with the director pursuant to subdivision eight of this section in the event a contracting agency  has  failed  or refused  to  issue  a  waiver  of  the minority and women-owned business enterprise participation requirements or has denied such request  for  a waiver;  and  shall  allow a contracting agency to file a complaint with the director pursuant to subdivision nine of this section in the event a contractor is failing or has failed to  comply  with  the  minority  and women-owned  business enterprise participation requirements set forth in the state contract where no waiver has been granted.  (b) The rules and regulations promulgated pursuant to this subdivision regarding a utilization plan shall provide that where  enterprises  have been  identified  within a utilization plan, a contractor shall attempt, in good faith, to  utilize  such  enterprise  at  least  to  the  extent indicated.  A  contracting  agency may require a contractor to indicate, within a utilization plan,  what  measures  and  procedures  he  or  she intends  to  take to comply with the provisions of this article, but may not require, as a condition of award of, or compliance with, a  contract that  a contractor utilize a particular enterprise in performance of the contract.  (c) Without limiting other grounds for the disqualification of bids or proposals on the basis of non-responsibility, a contracting  agency  may disqualify  the bid or proposal of a contractor as being non-responsible for  failure  to  remedy  notified   deficiencies   contained   in   the contractor's  utilization  plan  within  a  period  of time specified in regulations promulgated by the director after receiving notification  of such  deficiencies  from the contracting agency. Where failure to remedy any notified  deficiency  in  the  utilization  plan  is  a  ground  for disqualification,  that issue and all other grounds for disqualification shall be  stated  in  writing  by  the  contracting  agency.  Where  the contracting  agency  states  that  a  failure  to  remedy  any  notified deficiency in the utilization plan is a ground for disqualification  the contractor  shall be entitled to an administrative hearing, on a record, involving all grounds stated by the  contracting  agency.  Such  hearing shall  be  conducted  by  the  appropriate  authority of the contracting agency  to  review  the  determination  of  disqualification.  A   final administrative  determination  made  following  such  hearing  shall  be reviewable in a proceeding commenced under article seventy-eight of  the civil practice law and rules, provided that such proceeding is commenced within  thirty days of the notice given by certified mail return receipt requested  rendering  such  final  administrative  determination.   Such proceeding  shall be commenced in the supreme court, appellate division, third department and such proceeding shall be preferred over  all  other civil  causes  except election causes, and shall be heard and determined in preference to  all  other  civil  business  pending  therein,  except election  matters,  irrespective  of  position  on the calendar. Appeals taken to the court of appeals of the state of New York shall be  subject to the same preference.   6.  (a)  Where it appears that a contractor cannot, after a good faith effort, comply with the minority  and  women-owned  business  enterprise participation  requirements  set forth in a particular state contract, a contractor may file a written application with  the  contracting  agency requesting  a partial or total waiver of such requirements setting forth the reasons for such contractor's inability to meet any or  all  of  the participation  requirements  together with an explanation of the efforts  undertaken by  the  contractor  to  obtain  the  required  minority  and women-owned  business  enterprise  participation.  In  implementing  the provisions of this section, the contracting agency  shall  consider  the number  and  types  of  minority  and  women-owned  business enterprises available to provide goods or services required under  the  contract  in the  region  in  which  the state contract is to be performed, the total dollar value of the state contract, the scope of work  to  be  performed and  the  project  size  and term. If, based on such considerations, the contracting agency determines there is not a reasonable availability  of contractors  on  the  list of certified business to furnish services for the project, it shall issue a waiver of compliance to the contractor. In making such determination, the contracting agency shall  first  consider the availability of other business enterprises located in the region and shall   thereafter  consider  the  financial  ability  of  minority  and women-owned businesses located outside the region in which the  contract is to be performed to perform the state contract.  (b)  Upon  the  issuance  of  all waivers of compliance as provided in paragraph (a) of this subdivision, the  contracting  agency  shall:  (i) report  the  issuance of the waiver to the director; and (ii) publish on the contracting agency's website on a monthly basis, if practicable, but no less than on a quarterly basis, in a location  easily  accessible  to the  general public: (1) information identifying the contract, including the value of the contract; (2) the name of the contractor receiving  the waiver; (3) the date of the waiver; (4) whether the waiver was a partial or  total  waiver; and (5) the specific contract provisions to which the waiver applies.   7. For purposes of determining a contractor's  good  faith  effort  to comply  with  the  requirements  of  this section or to be entitled to a waiver therefrom the contracting agency shall consider:  (a) whether the  contractor  has  advertised  in  general  circulation media,   trade   association   publications,   and   minority-focus  and women-focus media and, in such  event,  (i)  whether  or  not  certified minority  or  women-owned  businesses  which  have been solicited by the contractor exhibited interest in submitting proposals for  a  particular project  by attending, or having attended, a pre-bid conference, if any, scheduled by the state agency awarding the state contract with certified minority and women-owned business enterprises; and  (ii) whether certified businesses which have  been  solicited  by  the contractor  have  responded  in  a  timely  fashion  to the contractor's solicitations  for  timely  competitive  bid  quotations  prior  to  the contracting agency's bid date; and  (b)  whether  the  contractor  provided timely written notification of subcontracting  opportunities  on  the  state  contract  to  appropriate certified   businesses   that  appear  in  the  directory  of  certified businesses prepared pursuant to paragraph (f) of  subdivision  three  of section three hundred eleven of this article; and  (c) whether the contractor can reasonably structure the amount of work to  be  performed under subcontracts in order to increase the likelihood of participation by certified businesses.   8. In the event that a contracting agency fails or refuses to issue  a waiver to a contractor as requested within twenty days after having made application  therefor  pursuant to subdivision six of this section or if the contracting agency denies such application, in whole or in part, the contractor may file a complaint with the director  pursuant  to  section three  hundred  sixteen  of  this  article  setting  forth the facts and circumstances giving rise to the contractor's complaint together with  a demand  for  relief. The contractor shall serve a copy of such complaint upon the contracting agency by personal service or  by  certified  mail,  return  receipt  requested.  The contracting agency shall be afforded an opportunity to respond to such complaint in writing.   9.  If,  after  the  review of a contractor's minority and women-owned business utilization plan or review of a periodic compliance report  and after  such  contractor has been afforded an opportunity to respond to a notice of deficiency issued by  the  contracting  agency  in  connection therewith, it appears that a contractor is failing or refusing to comply with the minority and women-owned business participation requirements as set  forth  in  the  state  contract  and  where  no  waiver  from  such requirements has been granted, the contracting agency may file a written complaint with the director pursuant to section three hundred sixteen of this article setting forth the facts and circumstances  giving  rise  to the  contracting  agency's  complaint together with a demand for relief. The contracting agency shall serve a copy of  such  complaint  upon  the contractor  by  personal  service  or  by certified mail, return receipt requested. The contractor shall be afforded an opportunity to respond to such complaint in writing.   * NB Repealed December 31, 2024