2023 New York Laws › EXC - Executive › Article 28 - Workforce Diversity Program › 822 - Workforce Participation Goals.

* §   822.   Workforce   participation  goals.  1.  The  director,  in
consultation with the department, shall develop aspirational  goals  for
the utilization of minority group members and women in each construction
trade, profession, and occupation.
(a)  Aspirational  goals for the utilization of minority group members
and women must set forth the expected participation  of  minority  group
members and women in each construction trade, profession, and occupation
and  shall be expressed as a percentage of the total hours of work to be
performed by  each  trade,  profession,  and  occupation  based  on  the
availability   of   minority   group   members  and  women  within  each
construction trade, profession, and occupation.
(i) The aspirational goals shall set forth separate levels of expected
participation by  men  and  women  for  each  minority  group,  and  for
Caucasian women, in each construction trade, profession, and occupation.
(ii)  The  director  may establish aspirational goals for the expected
participation of minority group members  and  women  for  municipalities
where the director deems feasible and appropriate.
(iii)  The  director  shall,  in  establishing the aspirational goals,
consider the findings  of  the  most  recent  disparity  study  and  any
relevant data published by the United States Census Bureau.
(b)  The  director  shall  update the aspirational goals on a periodic
basis, no less than biannually.
2. State agencies shall, for each invitation  for  bids,  request  for
proposals,  or  other  solicitation  that  will result in the award of a
state contract, set forth the expected degree of workforce participation
by minority group members and women.
(a) Each workforce participation goal established by  a  state  agency
shall  set  forth  the expected level of participation by minority group
members and women in the performance  of  each  trade,  profession,  and
occupation required in the performance of the contract.
(b)  Goals  for  the participation of minority group members and women
shall set forth separate goals for each of the following groups in  each
construction trade, profession, and occupation:
(i) Black men;
(ii) Black women;
(iii) Hispanic men;
(iv) Hispanic women;
(v) Native American men;
(vi) Native American women;
(vii) Asian men;
(viii) Asian women;
(ix) Caucasian women.
(c)  In  establishing  workforce  participation  goals, state agencies
shall consider factors including, but not limited to:
(i) the findings of the most recent disparity study;
(ii) any relevant data published by the United States  Census  Bureau;
and
(iii)   if  applicable,  any  aspirational  goal  established  by  the
division.
(d) In  any  case,  where  a  state  agency  establishes  a  workforce
participation  goal on an invitation for bids, request for proposals, or
other solicitation that will result in the award of a state contract for
construction that deviates  from  the  aspirational  goal  for  work  or
service  in the county or municipality in which the work or service will
be  performed,  the  state  agency  shall  document  numerical  evidence
demonstrating that the application of the aspirational goal would not be
practical, feasible, or appropriate.
3.  Every contractor responding to an invitation for bids, request for
proposals, or other solicitation that will result  in  the  award  of  a
state contract subject to workforce participation goals pursuant to this
section  shall  agree  to  make  a  good  faith  effort  to achieve such
workforce participation goal or request a waiver of such goal.
(a)  A contractor that certifies that it will make a good faith effort
to achieve  a  workforce  participation  goal  shall  provide  with  its
response  to  the applicable invitation for bids, request for proposals,
or other solicitation:
(i) A certification stating that the contractor will make a good faith
effort to achieve the applicable workforce participation goal  and  will
contractually  require  any  subcontractors  to the contractor to make a
good faith effort to achieve the applicable workforce participation goal
in any subcontracted work;
(ii) The level of anticipated participation by minority group  members
and  women  as  employees to the contractor, or, if the state agency has
specifically indicated that such documentation is not required  as  part
of  the  response  to the invitation for bids, request for proposals, or
other  solicitation,  a  date  certain  for  the  submission   of   such
documentation after the award of the state contract;
(iii)  A list of all subcontractors anticipated to perform work on the
state contract and the level of anticipated  participation  by  minority
group  members  and women as employees to each subcontractor, or, if the
state agency has specifically indicated that such documentation  is  not
required as part of the response to the invitation for bids, request for
proposals,  or  other solicitation, a date certain for the submission of
such documentation after the award of the state contract; and
(iv) Such other information as  the  contracting  state  agency  shall
require.
(b)  A  contractor that requests a waiver of a workforce participation
goal shall provide with its response to the  applicable  invitation  for
bids, request for proposals, or other solicitation:
(i)  Numerical  evidence  setting  forth  why  the  achievement of the
workforce participation goal is not practical, feasible, or  appropriate
in  light  of  the  construction  trades,  professions,  and occupations
required to perform the work of the state contract;
(ii) Documentation of the contractor's efforts,  and  any  efforts  by
subcontractors  to  the contractor, to promote the inclusion of minority
group  members  and  women  in  construction  trades,  professions,  and
occupations required in the performance of the state contract;
(iii) The level of anticipated participation by minority group members
and   women  in  each  of  the  construction  trades,  professions,  and
occupations required in  the  performance  of  the  work  of  the  state
contract;
(iv)  A  list of all subcontractors anticipated to perform work on the
state contract and the level of anticipated  participation  by  minority
group members and women as employees to each subcontractor; and
(v)  Any  other  relevant information evidencing that the contractor's
achievement of the workforce participation goal would not be  practical,
feasible, or appropriate.
4.  A  state  agency  may  not  award a state contract to a contractor
unless the contractor has (i) certified that it will make a  good  faith
effort  to  achieve  the  applicable  workforce  participation  goal and
provided documentation of the workforce anticipated to perform the  work
of the state contract or (ii) submitted a waiver request which the state
agency  deems  to reflect the maximum feasible participation of minority
group members and women in each of the construction trades, professions,

and occupations required  in  performance  of  the  work  of  the  state
contract.
(a)  In  the event that a contractor submits a certification or waiver
request that is accepted by the state agency,  the  state  agency  shall
establish  in  the state contract the expected level of participation by
minority group members and women in each  of  the  construction  trades,
professions,  and occupations required in performance of the work of the
state contract, require that the contractor make good faith  efforts  to
achieve  such workforce participation goals, require that the contractor
require any subcontractors to make a good faith effort  to  achieve  the
applicable workforce participation goal in any subcontracted work.
(b)  In  the  event that a contractor fails to submit a certification,
waiver request, or any other information required by the  state  agency,
or  the  state agency determines that a contractor's waiver request does
not demonstrate that the  applicable  workforce  participation  goal  is
impractical, unfeasible, or inappropriate, the state agency shall notify
the  contractor  of the deficiency in writing and provide the contractor
five business days to remedy the noticed deficiency. A state agency  may
reject  any bid or proposal of a contractor that fails to timely respond
to a notice of deficiency or  to  provide  documentation  remedying  the
deficiency to the satisfaction of the state agency.
(c)  Where  failure to remedy any notified deficiency in the workforce
utilization plan is a ground for disqualification, that  issue  and  all
other  grounds  for  disqualification  shall be stated in writing by the
contracting state agency. The director shall establish  via  regulation,
rules for state contracting agencies aimed at the measurement, reduction
and  elimination  of  erroneous  business  disqualifications including a
process affording a contractor notice and an  opportunity  to  be  heard
related to such disqualifications.
* NB Repealed December 31, 2024