2023 New York Laws › EXC - Executive › Article 15-A - Participation by Minority Group Members and Women With Respect to State Contracts › 310 - Definitions.

* § 310. Definitions.  As  used  in  this article, the following terms
shall have the following meanings:
1. "Certified business" shall mean a business verified as  a  minority
or  women-owned  business  enterprise  pursuant to section three hundred
fourteen of this article.
2. "Contracting agency" shall mean a state agency which is a party  or
a proposed party to a state contract or, in the case of a state contract
described  in  paragraph  (c)  of  subdivision thirteen of this section,
shall mean the New York state housing finance agency, housing trust fund
corporation or affordable housing corporation,  whichever  has  made  or
proposes  to  make  the  grant  or  loan  for the state assisted housing
project.
3. "Contractor" shall  mean  an  individual,  a  business  enterprise,
including  a  sole  proprietorship,  a  partnership,  a  corporation,  a
not-for-profit corporation, or any other party to a state contract, or a
bidder in conjunction with the award of a state contract or  a  proposed
party to a state contract.
4.  "Director" shall mean the director of the division of minority and
women's business development in the department of economic development.
5. "Large county" shall mean a county having a population in excess of
two hundred eighty-five thousand according to the  most  recent  federal
decennial census, provided however, that a county having a population in
excess  of  two  hundred  eighty-five thousand according to the nineteen
hundred eighty federal decennial census shall continue  to  be  a  large
county thereafter notwithstanding a later census showing a population of
less than two hundred eighty-five thousand for such county.
6.  "Metropolitan  area"  shall  mean  a city with a population of one
million or more and a county  having  a  population  in  excess  of  one
million and immediately contiguous to such city.
7.   "Minority-owned   business  enterprise"  shall  mean  a  business
enterprise,  including  a  sole  proprietorship,  partnership,   limited
liability company or corporation that is:
(a)  at  least  fifty-one  percent owned by one or more minority group
members;
(b)  an  enterprise  in  which  such  minority  ownership   is   real,
substantial and continuing;
(c)  an  enterprise in which such minority ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise;
(d) an  enterprise  authorized  to  do  business  in  this  state  and
independently owned and operated;
(e)  an  enterprise  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 on the first of January for inflation according to the
consumer price index of the previous year; and
(f) an enterprise that is a small  business  pursuant  to  subdivision
twenty of this section.
8.  "Minority  group  member"  shall  mean  a United States citizen or
permanent resident noncitizen who is and can demonstrate  membership  in
one of the following groups:
(a)  Black  persons  having origins in any of the Black African racial
groups;
(b) Hispanic/Latino  persons  of  Mexican,  Puerto  Rican,  Dominican,
Cuban,  Central  or  South American of either Indian or Hispanic origin,
regardless of race;
(c) Native American or Alaskan native persons having origins in any of
the original peoples of North America.
(d)  Asian  and  Pacific Islander persons having origins in any of the
Far East countries, South East Asia,  the  Indian  subcontinent  or  the
Pacific Islands.
9.  "Utilization  plan" shall mean a plan prepared by a contractor and
submitted in connection with a proposed state contract. The  utilization
plan   shall   identify   certified  minority  or  women-owned  business
enterprises, if known, that have committed to perform work in connection
with the proposed state contract as well as  any  such  enterprises,  if
known,  which  the  contractor  intends  to  use  in connection with the
contractor's performance of the proposed state contract. The plan  shall
specifically  contain  a list, including the name, address and telephone
number, of each certified enterprise with which the  contractor  intends
to subcontract.
10.  "Office" shall mean the division of minority and women's business
development in the department of economic development.
11. "State agency" shall mean (a) (i) any state  department,  or  (ii)
any  division,  board,  commission or bureau of any state department, or
(iii) the state university of New York and the city  university  of  New
York,  including  all  their constituent units except community colleges
and  the  independent  institutions  operating  statutory  or   contract
colleges  on  behalf  of the state, or (iv) a board, a majority of whose
members are appointed by the governor or who serve by  virtue  of  being
state  officers  or  employees  as  defined in subparagraph (i), (ii) or
(iii) of paragraph (i) of subdivision one of  section  seventy-three  of
the public officers law:
(b)  a "state authority," as defined in subdivision one of section two
of the public authorities law, and the following:
Albany County Airport Authority;
Albany Port District Commission;
Alfred, Almond, Hornellsville Sewer Authority;
Battery Park City Authority;
Cayuga County Water and Sewer Authority;
Nelson A. Rockefeller) Empire State Plaza Performing Arts
Center Corporation;
Industrial Exhibit Authority;
Livingston County Water and Sewer Authority;
Long Island Power Authority;
Long Island Rail Road;
Long Island Market Authority;
Manhattan and Bronx Surface Transit Operating Authority;
Metro-North Commuter Railroad;
Metropolitan Suburban Bus Authority;
Metropolitan Transportation Authority;
Natural Heritage Trust;
New York City Transit Authority;
New York Convention Center Operating Corporation;
New York State Bridge Authority;
New York State Olympic Regional Development Authority;
New York State Thruway Authority;
Niagara Falls Public Water Authority;
Niagara Falls Water Board;
Port of Oswego Authority;
Power Authority of the State of New York;
Roosevelt Island Operating Corporation;
Schenectady Metroplex Development Authority;
State Insurance Fund;
Staten Island Rapid Transit Operating Authority;
State University Construction Fund;
Syracuse Regional Airport Authority;
Triborough Bridge and Tunnel Authority.
Upper Mohawk valley regional water board.
Upper Mohawk valley regional water finance authority.
Upper Mohawk valley memorial auditorium authority.
Urban Development Corporation and its subsidiary corporations.
(c) the  following  only to the extent of state contracts entered into
for its own account or for the benefit of a state agency as  defined  in
paragraph (a) or (b) of this subdivision:
Dormitory Authority of the State of New York;
Facilities Development Corporation;
New York State Energy Research and Development Authority;
New York State Science and Technology Foundation.
12.  "State  assisted  housing  project" shall mean, for such projects
which receive from the  New  York  state  housing  finance  agency,  the
affordable  housing  corporation,  the housing trust fund corporation or
the division of housing and community renewal a grant or loan for all or
part of the total project cost:
(a) a "permanent housing project for homeless families"  or  "project"
as  defined  in  subdivision  five  of section sixty-four of the private
housing finance law;
(b) a "project" as  defined  in  subdivision  twelve  of  section  one
thousand  one  hundred  one  of the private housing finance law provided
said project is located in a large county  and  consists  of  more  than
twelve residential units at a single site;
(c)  "affordable  home ownership development programs" or "project" as
defined in subdivision eight of section one thousand one hundred  eleven
of the private housing finance law provided said project is located in a
metropolitan  area  as  herein  defined and consists of more than twelve
residential units at a single site;
(d) a "turnkey/enhanced rental project" or  "project"  as  defined  in
subdivision two of section one thousand one hundred six-a of the private
housing finance law;
(e)  "infrastructure  improvements"  as  defined in subdivision two of
section one thousand one  hundred  thirty-one  of  the  private  housing
finance  law,  to the extent that such "infrastructure improvements" are
applied for in connection with  a  state  assisted  housing  project  as
defined  in  paragraphs (a) through (d) of this subdivision and provided
further that the applicant for such infrastructure improvements and  for
such state assisted housing project are identical.
13.  "State  contract" shall mean: (a) a written agreement or purchase
order instrument,  providing  for  a  total  expenditure  in  excess  of
twenty-five  thousand dollars, whereby a contracting agency is committed
to expend or does expend funds in return for labor,  services  including
but  not  limited  to  legal, financial and other professional services,
supplies, equipment, materials or any combination of the  foregoing,  to
be  performed  for,  on  behalf  of,  or  rendered  or  furnished to the
contracting agency; (b) a written agreement in  excess  of  one  hundred
thousand  dollars whereby a contracting agency is committed to expend or
does  expend  funds  for  the  acquisition,  construction,   demolition,
replacement,   major   repair   or   renovation  of  real  property  and
improvements thereon; and (c) a  written  agreement  in  excess  of  one
hundred  thousand  dollars whereby the owner of a state assisted housing
project is committed to expend or does expend funds for the acquisition,
construction, demolition, replacement, major  repair  or  renovation  of
real property and improvements thereon for such project.
14.  "Subcontract"  shall  mean  an  agreement  providing  for a total
expenditure  in  excess  of  twenty-five  thousand   dollars   for   the
construction,   demolition,   replacement,   major  repair,  renovation,
planning or design of real property and improvements thereon  between  a
contractor  and  any individual or business enterprise, including a sole
proprietorship, partnership, corporation, or not-for-profit corporation,
in which a portion of a contractor's obligation under a  state  contract
is  undertaken  or  assumed,  but  shall  not  include any construction,
demolition, replacement, major repair, renovation, planning or design of
real property or improvements thereon for  the  beneficial  use  of  the
contractor.
15.   "Women-owned   business   enterprise"   shall  mean  a  business
enterprise,  including  a  sole  proprietorship,  partnership,   limited
liability company or corporation that is:
(a)  at  least  fifty-one  percent  owned by one or more United States
citizens or permanent resident noncitizens who are women;
(b) an enterprise in which the ownership interest  of  such  women  is
real, substantial and continuing;
(c)  an enterprise in which such women ownership has and exercises the
authority to control independently the day-to-day business decisions  of
the enterprise;
(d)  an  enterprise  authorized  to  do  business  in  this  state and
independently owned and operated;
(e) an  enterprise  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 on the first of January for inflation according to the
consumer price index of the previous year; and
(f)  an  enterprise  that  is a small business pursuant to subdivision
twenty of this section.
A firm owned by a minority group member who is also  a  woman  may  be
certified   as  a  minority-owned  business  enterprise,  a  women-owned
business enterprise, or both,  and  may  be  counted  towards  either  a
minority-owned  business  enterprise  goal  or  a  women-owned  business
enterprise goal, in regard to any contract or any goal, set by an agency
or authority, but such participation may not  be  counted  towards  both
such  goals. Such an enterprise's participation in a contract may not be
divided between the minority-owned  business  enterprise  goal  and  the
women-owned business enterprise goal.
16.  "Statewide  advocate"  shall  mean  the  person  appointed by the
director to serve in  the  capacity  of  the  minority  and  women-owned
business enterprise statewide advocate and procurement ombudsman.
17.  "Commissioner"  shall  mean the commissioner of the department of
economic development.
18.  "Lessee"  shall  mean  an  individual,  a  business   enterprise,
including  a  sole  proprietorship,  a  partnership,  a  corporation,  a
not-for-profit corporation, or any other party to a lease with  a  state
agency as defined in subdivision eleven of this section, or a respondent
in  conjunction with the award of such a lease or a proposed lessee with
a state agency as defined in subdivision eleven of this section.
19. "Personal net worth" shall mean the aggregate adjusted  net  value
of  the  assets  of  an individual remaining after total liabilities are
deducted. Personal net worth includes the individual's share  of  assets
held  jointly  with  said  individual's  spouse and does not include the
individual's  ownership  interest  in   the   certified   minority   and
women-owned  business  enterprise, the individual's equity in his or her
primary residence, ownership interest in a holding  company  established

for  the  exclusive and sole purpose of leasing machinery, equipment, or
vehicles exclusively to the certified minority or  women-owned  business
enterprise  that is majority owned by the minority group member or woman
relied  upon for certification, and the holding company does not own any
other assets of any kind, or up to seven hundred fifty thousand  dollars
of  the  present  cash value of any qualified retirement savings plan or
individual retirement account held by the individual less any  penalties
for early withdrawal.
20.  "Small  business"  as  used  in  this  section,  unless otherwise
indicated, shall mean  a  business  which  has  a  significant  business
presence in the state, is independently owned and operated, not dominant
in  its  field  and  employs, based on its industry, a certain number of
persons as determined by the director, but not to exceed three  hundred,
except during a declared state disaster emergency as defined pursuant to
section  twenty-eight  of  this  chapter,  not  to  exceed three hundred
employees who work thirty or more hours per  week  over  the  period  of
fifty-two  weeks  for  a  total of one thousand five hundred sixty hours
worked, taking into consideration factors which  include,  but  are  not
limited  to, federal small business administration standards pursuant to
13 CFR part 121 and any  amendments  thereto.  The  director  may  issue
regulations  on  the  construction  of the terms in this definition. For
purposes of this subdivision, an employee may break from employment  for
up  to  thirteen  weeks  without  the  fifty-two  week  lookback  period
resetting.
21.  "The  disparity  study"  shall  refer  to  the  disparity   study
commissioned  by  the  department  of  economic development, pursuant to
section three hundred twelve-a of this article, and  published  on  June
thirtieth, two thousand seventeen.
22.  "Diversity  practices"  shall mean the contractor's practices and
policies with respect to:
(a) utilizing or mentoring certified minority and women-owned business
enterprises in contracts awarded by  a  state  agency  or  other  public
corporation, as subcontractors and suppliers; and
(b)  entering  into  partnerships,  joint  ventures  or  other similar
arrangements  with   certified   minority   and   women-owned   business
enterprises  as  defined  in this article or other applicable statute or
regulation governing an entity's utilization of minority or  women-owned
business enterprises.
23.   "Provisional   MWBE   Certification"  shall  mean  minority  and
women-owned business enterprise certification  status  which  shall  not
exceed one year, but which may be renewed by the director.
* NB Repealed July 1, 2025