New York Codes, Rules and Regulations › Title 5 - DEPARTMENT OF ECONOMIC DEVELOPMENT › Chapter XIV - Division of Minority and Women's Business Development › Part 142 - Requirements And Procedures Regarding Participation By Certified Minority- And Women-owned Business Enterprises On State Contracts › Section 142.13 - Provisions in contracts; violations; and debarment

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Every contracting agency shall include a
				provision in its State contracts expressly providing that any contractor who
				willfully and intentionally fails to comply with the minority and women-owned
				participation requirements of these regulations as set forth in such State
				contract shall be liable to the contracting agency for liquidated or other
				appropriate damages, as otherwise specified in the contract, and shall provide
				for other appropriate remedies on account of such breach. Damages shall be
				calculated based on the actual cost incurred by the State agency related to the
				State agency's expenses for personnel, supplies and overhead related to
				establishing, monitoring, and reviewing certified minority and women-owned
				business enterprise programmatic goals and Affirmative Action and Equal
				Opportunity compliance, or the amount stated in the solicitation as liquidated
				damages. A contracting agency that elects to proceed against a contractor for
				breach of contract as provided in this section shall be precluded from seeking
				enforcement pursuant to section
				three hundred
				sixteen of the Executive Law. The contracting agency
				shall, however, include a summary of all enforcement actions undertaken
				pursuant to this section in its annual report submitted pursuant to subdivision
				three of section
				three hundred
				fifteen of the Executive Law.
(b) The penalties or debarment imposed for
				any violation which is premised upon either a fraudulent or intentional
				misrepresentation by the contractor or the contractor's willful and intentional
				disregard of the minority and women-owned participation requirement included in
				the contract may include a determination that the contractor shall be
				ineligible to submit a bid to any contracting State agency or be awarded any
				State contract for a period not to exceed one year following the final
				determination; provided however, if a contractor has previously been determined
				to be ineligible to submit a bid pursuant to this section, the penalties
				imposed for any subsequent violation, if such violation occurs within five
				years of the first violation, may include a determination that the contractor
				shall be ineligible to submit a bid to any contracting State agency or be
				awarded any State contract for a period not to exceed five years following the
				final determination. The division shall maintain a website listing all
				contractors that have been deemed ineligible to submit a bid pursuant to this
				section and the date after which each contractor shall once again become
				eligible to submit bids.
(c) The
				director shall establish guidelines for the implementation of a debarment
				process which includes notice of hearing and referral to the division's hearing
				officer for a hearing. The hearing shall be held in accordance with Section
				145.3 of Part 145 of this
				Title.