2023 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
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) The rules and regulations promulgated pursuant to this subdivision
regarding compliance reports  shall  provide  that  such  reports  shall
include  a  standardized  prepayment declaration, to be completed before
each payment to a contractor, in which:  (i)  a  representative  of  the
contractor  lists  any  business  that  was  or shall be relied upon for
credit toward minority and women-owned business enterprise participation
and states under penalty of perjury that  such  business  or  businesses
appeared   on   the  division's  directory  of  certified  minority  and
women-owned business enterprises at the time  of  contracting  and  that
each  business performed or shall perform a commercially useful function
on the contract; and (ii) a representative of any business that  was  or
shall be relied upon for credit toward minority and women-owned business
enterprise  participation  states  under  penalty  of  perjury  that  it
appeared  on  the  division's  directory  of  certified   minority   and
women-owned   business  enterprises  at  the  time  of  contracting  and
performed or  shall  perform  a  commercially  useful  function  on  the
contract.  Such  standardized prepayment declarations shall be submitted
electronically  on  a  centralized  state  registry  designated  by  the
division prior to any payment to a contractor. The rules and regulations
promulgated pursuant to this subdivision may also require the contractor
or  subcontractor  to  submit  documentation,  as needed, to support any
statements made in such standardized prepayment declarations.
(d) 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 July 1, 2025