2023 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,  and  consistent with the provisions of article
twenty-three-A of the correction 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 noncitizens;
(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 July 1, 2025