New York Participation By Minority-owned And Women-owned Business Enterprises In City Procurement.
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§ 6-129. Participation by minority-owned and women-owned business
enterprises in city procurement. a. Program established. There is hereby
established a program, to be administered by the department of small
business services in accordance with the provisions of this section,
designed to enhance participation by minority-owned and women-owned
business enterprises in city procurement.
b. Policy. It is the policy of the city to seek to ensure fair
participation in city procurement; and in furtherance of such policy to
fully and vigorously enforce all laws prohibiting discrimination, and to
promote equal opportunity in city procurement by vigorously enforcing
the city's contractual rights and pursuing its contractual remedies. The
program established pursuant to this section is intended to address the
impact of discrimination on the city's procurement process, and to
promote the public interest in avoiding fraud and favoritism in the
procurement process, increasing competition for city business, and
lowering contract costs.
c. Definitions. For purposes of this section, the following terms
shall have the following meaning:
(1) "Agency" means a city, county, borough, or other office, position,
administration, department, division, bureau, board or commission, or a
corporation, institution or agency of government, the expenses of which
are paid in whole or in part from the city treasury.
(2) "Agency chief contracting officer" means the person to whom an
agency head has delegated authority to organize and supervise the
agency's procurement activity.
(3) "Availability rate" means the percentage of business enterprises
within an industry classification that are owned by minorities or women
willing and able to perform agency contracts.
(4) "Bidder" means any person submitting a bid or proposal in response
to a solicitation for such bid or proposal from an agency.
(5) "Bidders list" or "proposers list" means a list maintained by an
agency that includes persons from whom bids or proposals can be
solicited.
(6) "City" means the city of New York.
(7) "City chief procurement officer" means the person to whom the
mayor has delegated authority to coordinate and oversee the procurement
activity of mayoral agency staff, including the agency chief contracting
officers and any offices that have oversight responsibility for
procurement.
(8) "Commercially useful function" means a real and actual service
that is a distinct and verifiable element of the work called for in a
contract. In determining whether an MBE or WBE is performing a
commercially useful function, factors including but not limited to the
following shall be considered:
(i) whether it has the skill and expertise to perform the work for
which it is being utilized, and possesses all necessary licenses;
(ii) whether it is in the business of performing, managing or
supervising the work for which it has been certified and is being
utilized; and
(iii) whether it purchases goods and/or services from another business
and whether its participation in the contract would have the principal
effect of allowing it to act as a middle person or broker in which case
it may not be considered to be performing a commercially useful function
for purposes of this section.
(9) "Commissioner" shall mean the commissioner of small business
services.
(10) "Construction contract" means any agreement with an agency for or
in connection with the construction, reconstruction, demolition,
excavation, renovation, alteration, improvement, rehabilitation, or
repair of any building, facility, physical structure of any kind.
(11) "Contract" means any agreement, purchase order or other
instrument whereby the city is committed to expend or does expend funds
in return for goods, professional services, standard services,
architectural and engineering services, or construction.
(12) "Contractor" means a person who has been awarded a contract.
(13) "Directory" means a list prepared by the division of firms
certified pursuant to section 1304 of the charter.
(14) "Division" shall mean the division of economic and financial
opportunity within the department of small business services.
(15) "Geographic market of the city" means the following counties:
Bronx, Kings, New York, Queens, Richmond, Nassau, Putnam, Rockland,
Suffolk and Westchester within the State of New York; and Bergen,
Hudson, and Passaic within the state of New Jersey.
(16) "Goal" means a numerical target.
(17) "Graduate MBE" or "graduate WBE" means an MBE or WBE which shall
have been awarded $15 million or more in prime contracts by one or more
agencies within the past three years.
(18) "Industry classification" means one of the following
classifications:
(i) construction;
(ii) professional services;
(iii) standard services; and
(iv) goods.
(19) "Joint venture" means an association, of limited scope and
duration, between two or more persons who have entered into an agreement
to perform and/or provide services required by a contract, in which each
such person contributes property, capital, effort, skill and/or
knowledge, and in which each such person is entitled to share in the
profits of the venture in reasonable proportion to the economic value of
its contribution.
(20) "MBE" means a minority-owned business enterprise certified in
accordance with section 1304 of the charter.
(21) "Minority group" means Black Americans; Asian Americans, and
Hispanic Americans, provided that the commissioner shall be authorized
to add additional groups to this definition upon a finding that there is
statistically significant disparity between the availability of firms
owned by persons in such a group and the utilization of such firms in
city procurement.
(22) "Person" means any business, individual, partnership,
corporation, firm, company, or other form of doing business.
(23) "Professional services" means services that require specialized
skills and the exercise of judgment, including but not limited to
accountants, lawyers, doctors, computer programmers and consultants,
architectural and engineering services, and construction management
services.
(24) "Qualified joint venture agreement" means a joint venture between
one or more MBEs and/or WBEs and another person, in which the percentage
of profit to which the certified firm or firms is entitled for
participation in the contract, as set forth in the joint venture
agreement, is at least 25% of the total profit.
(25) "Scope of work" means specific tasks required in a contract
and/or services or goods that must be provided to perform specific tasks
required in a contract.
(26) "Standard services" means services other than professional
services.
(27) "Subcontractor" means a person who has entered into an agreement
with a contractor to provide something that is required pursuant to a
contract.
(28) "Utilization rate" means the percentage of total contract
expenditures expended on contracts or subcontracts with firms that are
owned by women or minorities, respectively, in one or more industry
classifications.
(29) "WBE" means a women-owned business enterprise certified in
accordance with section 1304 of the charter.
d. Citywide goals. (1) The citywide contracting participation goals
for MBEs and WBEs shall be as follows:
For construction contracts under one million dollars:
Race/gender group: Participation goal:
Black Americans 12.63% of total annual agency expenditures
on such contracts
Hispanic Americans 9.06% of total annual agency expenditures
on such contracts
For professional services contracts under one million dollars:
Race/gender group: Participation goal:
Black Americans 9% of total annual agency expenditures
on such contracts
Hispanic Americans 5% of total annual agency expenditures
on such contracts
Caucasian females 16.5% of total annual agency expenditures
on such contracts
For standard services contracts under one million dollars:
Race/gender group: Participation goal:
Black Americans 9.23% of total annual agency expenditures
on such contracts
Hispanic Americans 5.14% of total annual agency expenditures
on such contracts
Caucasian females 10.45% of total annual agency expenditures
on such contracts
For goods contracts under one million dollars:
Race/gender group: Participation goal:
Black Americans 7.47% of total annual agency expenditures
on such contracts
Asian Americans 5.19% of total annual agency expenditures
on such contracts
Hispanic Americans 4.99% of total annual agency expenditures
on such contracts
Caucasian females 17.87% of total annual agency expenditures
on such contracts
For construction subcontracts under one million dollars:
Race/gender group: Participation goal:
Black Americans 12.63% of total annual agency expenditures
on such subcontracts
Asian Americans 9.47% of total annual agency expenditures
on such subcontracts
Hispanic Americans 9.06% of total annual agency expenditures
on such subcontracts
For professional services subcontracts under one million dollars:
Race/gender group: Participation goal:
Black Americans 9% of total annual agency expenditures
on such subcontracts
Hispanic Americans 5% of total annual agency expenditures
on such contracts
Caucasian females 16.5% of total annual agency expenditures
on such subcontracts
(2) Agencies shall develop agency utilization plans pursuant to
subdivision g of this section. Agencies shall seek to ensure substantial
progress toward the attainment of these goals in as short a time as
practicable.
(3) The citywide goals shall not be summarily adopted as goals for
individual procurements; rather, as set forth in subdivision i of this
section, goals for such procurements may be set at levels higher, lower,
or the same as the citywide goals.
(4) Beginning twelve months after the effective date of the local law
that added this section and every two years thereafter, the
commissioner, in consultation with the city chief procurement officer,
shall, for each industry classification and each minority group, review
and compare the availability rates of firms owned by minorities and
women to the utilization rates of such firms in agency contracts and
subcontracts, and shall on the basis of such review and any other
relevant information, where appropriate, revise by rule the citywide
participation goals set forth in this subdivision. In making such
revision, the commissioner shall consider the extent to which
discrimination continues to have an impact on the ability of minorities
and women to compete for city contracts and subcontracts. The
commissioner shall submit the results of such review and any proposed
revisions to the participation goals to the speaker of the council at
least sixty days prior to publishing a proposed rule that would revise
participation goals.
e. Responsibilities of the division. (1) The division shall create and
maintain and periodically update directories by industry classification
of MBEs and WBEs which it shall supply to all agencies, post on its
website and on other relevant city websites and make available for
dissemination and/or public inspection at its offices and other
locations within each borough.
(2) The division shall make its resources available to assist agencies
and contractors in (i) determining the availability of MBEs and WBEs to
participate in their contracts as prime contractors and/or
subcontractors; and (ii) identifying opportunities appropriate for
participation by MBEs and WBEs in contracts.
(3) The division shall develop and maintain relationships with
organizations representing contractors, including MBEs and WBEs, and
solicit their support and assistance in efforts to increase
participation of MBEs and WBEs in city procurement.
(4) The division shall coordinate with city and state entities that
maintain databases of MBEs and WBEs and work to enhance city
availability data and directories.
(5) The division shall keep agency M/WBE officers informed of
conferences, contractor fairs, and other services that are available to
assist them in pursuing the objectives of this section.
(6) The division shall conduct, coordinate and facilitate technical
assistance and educational programs for MBEs and WBEs and other
contractors designed to enhance participation of MBEs and WBEs in city
procurement. The division shall further develop a clearinghouse of
information on programs and services available to MBEs and WBEs.
(7) The division shall develop standardized forms and reporting
documents for agencies and contractors to facilitate the reporting
requirements of this section.
(8) The division shall direct and assist agencies in their efforts to
increase participation by MBEs and WBEs in any city-operated financial,
technical, and management assistance program.
(9) The division shall study and recommend to the commissioner methods
to streamline the M/WBE certification process.
(10) Each fiscal year the division, in consultation with the city
chief procurement officer, shall audit at least 5% of all contracts for
which utilization plans are established in accordance with subdivision i
of this section and 5% of all contracts awarded to MBEs and WBEs to
assess compliance with this section. All solicitations for contracts for
which utilization plans are to be established shall include notice of
potential audit.
(11) The division shall assist agencies in identifying and seeking
ways to reduce or eliminate practices such as bonding requirements or
delays in payment by prime contractors that may present barriers to
competition by MBEs and WBEs.
f. Responsibilities of agency M/WBE officers. Each agency head shall
designate a deputy commissioner or other executive officer to act as the
agency M/WBE officer who shall be directly accountable to the agency
head concerning the activities of the agency in carrying out its
responsibilities pursuant to this section. The duties of the M/WBE
officer shall include, but not be limited to:
(i) creating the agency's utilization plan in accordance with
subdivision g of this section;
(ii) acting as the agency's liaison with the division;
(iii) acting as a liaison with organizations and/or associations of
MBEs and WBEs, informing such organizations and/or associations of the
agency's procurement procedures, and advising them of future procurement
opportunities;
(iv) ensuring that agency bid solicitations and requests for proposals
are sent to MBEs and WBEs in a timely manner, consistent with this
section and rules of the procurement policy board;
(v) referring MBEs and WBEs to technical assistance services available
from agencies and other organizations;
(vi) reviewing requests for waivers and/or modifications of
participation goals and contractor utilization plans in accordance with
paragraph 13 of subdivision i of this section;
(vii) working with the division and city chief procurement officer in
creating directories as required pursuant to subdivision k of this
section. In fulfilling this duty, the agency M/WBE officer shall track
and record each contractor that is an MBE or WBE and each subcontractor
hired pursuant to such officer's agency contracts that is an MBE or WBE,
and shall share such information with the commissioner and the city
chief procurement officer;
(viii) for contracts for which utilization goals have been established
pursuant to subdivision i of this section, monitoring each contractor's
compliance with its utilization plan by appropriate means, which shall
include, but need not be limited to, job site inspections, contacting
MBEs and WBEs identified in the plan to confirm their participation, and
auditing the contractor's books and records;
(ix) monitoring the agency's procurement activities to ensure
compliance with its agency utilization plan and progress towards the
participation goals as established in such plan; and
(x) providing to the city chief procurement officer information for
the reports required in subdivision l of this section and providing any
other plans and/or reports required pursuant to this section or
requested by the city chief procurement officer.
g. Agency utilization plans. (1) Beginning May 15, 2006, and on April
1 of each year thereafter, each agency which has made procurements in
excess of five million dollars during the fiscal year which ended on
June 30 of the preceding calendar year shall submit an agency
utilization plan for the fiscal year commencing in July of the year when
such plan is to be submitted to the commissioner. Upon approval by the
commissioner such plan shall be submitted to the speaker of the council.
Each such plan shall, at a minimum, include the following:
(i) the agency's participation goals for MBEs and WBEs for the year;
(ii) an explanation for any agency goal that is different than the
participation goal for the relevant group and industry classification as
determined pursuant to subdivision d of this section;
(iii) a list of the names and titles of agency personnel responsible
for implementation of the agency utilization plan;
(iv) methods and relevant activities proposed for achieving the
agency's participation goals; and
(v) any other information which the agency or the commissioner deems
relevant or necessary.
(2) An agency utilization plan may be amended from time to time to
reflect changes in the agency's projected expenditures or other relevant
circumstances and resulting changes in such agency's participation
goals. Such amendments shall be submitted to the commissioner, the city
chief procurement officer and the speaker of the council at least thirty
days prior to implementation.
h. Achieving agency participation goals. (1) Each agency head shall be
directly accountable for the goals set forth in his or her agency's
utilization plan.
(2) Each agency shall make all reasonable efforts to meet the
participation goals established in its agency utilization plan. Agencies
shall, at a minimum, use the following methods to achieve participation
goals:
(i) Agencies shall engage in outreach activities to encourage MBEs and
WBEs to compete for all facets of their procurement activities,
including contracts awarded by negotiated acquisition, emergency and
sole source contracts, and each agency shall seek to utilize MBEs and/or
WBEs for all types of goods, services and construction they procure.
(ii) Agencies shall encourage eligible businesses to apply for
certification as MBEs and WBEs and inclusion in the directories of MBEs
and WBEs. Agencies shall also encourage MBEs and WBEs to have their
names included on their bidders lists, seek pre-qualification where
applicable, and compete for city business as contractors and
subcontractors. Agencies are encouraged to advertise procurement
opportunities in general circulation media, trade and professional
association publications and small business media, and publications of
minority and women's business organizations, and send written notice of
specific procurement opportunities to minority and women's business
organizations.
(iii) All agency solicitations for bids or proposals shall include
information referring potential bidders or proposers to the directories
of MBEs and WBEs prepared by the division.
(iv) In planning procurements, agencies shall consider the effect of
the scope, specifications and size of a contract on opportunities for
participation by MBEs and WBEs.
(v) For construction contracts, agencies shall consider whether to
enter into separate prime contracts for construction support services
including, but not limited to, trucking, landscaping, demolition, site
clearing, surveying and site security.
(vi) Prior to soliciting bids or proposals for contracts valued at
over ten million dollars, an agency shall submit the bid or proposal to
the city chief procurement officer for a determination whether it is
practicable to divide the proposed contract into smaller contracts and
whether doing so will enhance competition for such contracts among MBEs
and WBEs and other potential bidders or proposers. If the city chief
procurement officer determines that it is both practicable and
advantageous in light of cost and other relevant factors to divide such
contracts into smaller contracts, then he or she shall direct the agency
to do so.
(vii) Agencies shall examine their internal procurement policies,
procedures and practices and, where practicable, address those elements,
if any, that may negatively affect participation of MBEs and WBEs in
city procurement.
(viii) Agency M/WBE officers shall, in accordance with guidelines
established by the city chief procurement officer, establish a process
for quarterly meetings with MBEs and WBEs to discuss what the agency
looks for in evaluating bids and proposals.
(ix) Agencies shall encourage prime contractors to enter joint venture
agreements with MBEs and WBEs.
i. Participation goals for construction and professional services
contracts. (1) Prior to issuing the solicitation of bids or proposals
for individual construction and professional services contracts,
agencies shall establish a target subcontracting percentage for the
contract and participation goals for MBEs and WBEs. The "target
subcontracting percentage" for the contract shall represent the
percentage of the total contract which the agency anticipates a typical
prime contractor in the relevant industry would in the normal course of
business award to one or more subcontractors for amounts under one
million dollars. The participation goals established for a contract
shall represent a percentage of the total dollar value of all
subcontracts for amounts under one million dollars pursuant to the
award. Such goals may be greater than, less than or the same as the
relevant citywide goal or goals established pursuant to subdivision d of
this section. In determining the participation goals for a particular
contract, an agency shall consider the following factors:
(i) the scope of work;
(ii) the availability of MBEs and WBEs able to perform the particular
tasks required in the contract;
(iii) the extent to which the type of work involved in the contract
presents subcontracting opportunities for amounts under one million
dollars;
(iv) the agency's progress to date toward meeting its annual
participation goals through race-neutral, gender-neutral and other
means, and the agency's expectations as to the effect such methods will
have on participation of MBEs and WBEs in the agency's future contracts;
and (v) any other factors the contracting agency deems relevant.
(2) A contracting agency shall not be required to establish
participation goals (i) for procurements described in subdivision q of
this section; or
(ii) when the agency has already attained the relevant goal in its
annual utilization plan, or expects that it will attain such goal
without the use of such participation goals.
(3) For each contract in which a contracting agency has established
participation goals, such agency shall state in the solicitation for
such contract that bidders and/or proposers shall be required to agree
as a material term of the contract that, with respect to the total
amount of the contract to be awarded to one or more subcontractors
pursuant to subcontracts for amounts under one million dollars, the
contractor shall be subject to participation goals unless such goals are
modified by the agency in accordance with this section.
(4) For each contract in which participation goals are established,
the agency shall include in its solicitation and/or bidding materials, a
referral to the directories prepared by the division pursuant to this
section.
(5) For each contract for which participation goals are established
the contractor shall be required to submit with its bid or proposal, a
utilization plan indicating the percentage of the work it intends to
subcontract, and the percentage of work it intends to award to
subcontractors for amounts under one million dollars, and, in cases
where the contractor intends to award subcontracts for amounts under one
million dollars, a description of the type and dollar value of work
designated for participation by MBEs and/or WBEs, and the time frames in
which such work is scheduled to begin and end. When the utilization plan
indicates that the bidder or proposer does not intend to award the
target subcontracting percentage, the bid or proposal shall not be
deemed responsive unless the agency has granted a pre-award waiver
pursuant to paragraph 11 of this subdivision.
(6) For each contract for which a utilization plan has been submitted,
the contracting agency shall require that within thirty days of the
issuance of notice to proceed, the contractor submit a list of persons
to which it intends to award subcontracts within the next twelve months.
In the event that a contracting agency disapproves a contractor's
selection of a subcontractor or subcontractors, the contracting agency
shall allow such contractor a reasonable time to propose alternate
subcontractors.
(7) For each contract for which a utilization plan has been submitted,
the contractor shall, with each voucher for payment, and/or periodically
as the agency may require, submit statements, certified under penalty of
perjury, which shall include, but not be limited to, the total amount
paid to subcontractors (including subcontractors that are not MBEs or
WBEs); the names, addresses and contact numbers of each MBE or WBE hired
as a subcontractor pursuant to such plan as well as the dates and
amounts paid to each MBE or WBE. The contractor shall also submit, along
with its voucher for final payment, the total amount paid to
subcontractors (including subcontractors that are not MBEs or WBEs); and
a final list, certified under penalty of perjury, which shall include
the name, address and contact information of each subcontractor that is
an MBE or WBE hired pursuant to such plan, the work performed by, and
the dates and amounts paid to each.
(8) If payments made to, or work performed by, MBEs or WBEs are less
than the amount specified in the contractor's utilization plan, the
agency shall take appropriate action in accordance with subdivision o of
this section, unless the contractor has obtained a modification of its
utilization plan pursuant to paragraph 12 of this subdivision.
(9) When advertising a solicitation for bids or proposals for a
contract for which a participation goal has been established, agencies
shall include in the advertisement a general statement that the contract
will be subject to participation goals for MBEs and/or WBEs.
(10) In the event that a contractor with a contract that includes a
utilization plan submits a request for a change order the value of which
exceeds ten percent of such contract, the agency shall establish
participation goals as if for a new contract for the work to be
performed pursuant to such change order.
(11) Pre-award waiver. (i) Subject to subparagraph (ii) of this
paragraph, the contracting agency may grant a full or partial waiver of
the target subcontracting percentage to a bidder or proposer who
demonstrates that it has legitimate business reasons for proposing the
level of subcontracting in its utilization plan. The contracting agency
shall make its determination in light of factors which shall include,
but not be limited to, whether the bidder or proposer has the capacity
and the bona fide intention to perform the contract without any
subcontracting, or to perform the contract without awarding the amount
of subcontracts for under one million dollars represented by the target
subcontracting percentage. In making such determination, the agency may
consider whether the utilization plan is consistent with past
subcontracting practices of the bidder or proposer, and whether the
bidder or proposer has made good faith efforts to identify portions of
the contract that it intends to subcontract. Within thirty days of the
registration of a contract, the city chief contracting officer shall
notify the council of any such waiver granted with respect to the
contract.
(ii) The agency M/WBE officer shall provide written notice of requests
for a full or partial waiver of the target subcontracting percentage to
the division and the city chief procurement officer and shall not
approve any such request without the approval of the city chief
procurement officer, provided that the city chief procurement officer,
upon adequate assurances of an agency's ability to administer its
utilization plan in accordance with the provisions of this section, may
determine that further approval from the city chief procurement officer
is not required with respect to such requests for an agency's contracts
or particular categories of an agency's contracts. The city chief
procurement officer shall notify the speaker of the council in writing
within seven days of the approval of a request for a full or partial
waiver of a target subcontracting percentage, provided that where an
agency has been authorized to grant waivers without approval of the
chief procurement officer, such notice shall be provided to the speaker
of the council by the agency. Such notification shall include, but not
be limited to, the name of the contractor, the original target
subcontracting percentage, the waiver request, including all
documentation, and an explanation for the approval of such request.
(12) Modification of utilization plans. (i) A contractor may request
modification of its utilization plan after the award of a contract.
Subject to subparagraph (ii) of this paragraph, an agency may grant such
request if it determines that such contractor has established, with
appropriate documentary and other evidence, that it made all reasonable,
good faith efforts to meet the goals set by the agency for the contract.
In making such determination, the agency shall consider evidence of the
following efforts, as applicable, along with any other relevant factors:
(A) The contractor advertised opportunities to participate in the
contract, where appropriate, in general circulation media, trade and
professional association publications and small business media, and
publications of minority and women's business organizations;
(B) The contractor provided notice of specific opportunities to
participate in the contract, in a timely manner, to minority and women's
business organizations;
(C) The contractor sent written notices, by certified mail or
facsimile, in a timely manner, to advise MBEs and WBEs that their
interest in the contract was solicited;
(D) The contractor made efforts to identify portions of the work that
could be substituted for portions originally designated for
participation by MBEs and/or WBEs in the contractor utilization plan,
and for which the contractor claims an inability to retain MBEs or WBEs;
(E) The contractor held meetings with MBEs and/or WBEs prior to the
date their bids or proposals were due, for the purpose of explaining in
detail the scope and requirements of the work for which their bids or
proposals were solicited;
(F) The contractor made efforts to negotiate with MBEs and/or WBEs as
relevant to perform specific subcontracts, or act as suppliers or
service providers;
(G) Timely written requests for assistance made by the contractor to
the agency M/WBE liaison officer and to the division;
(H) Description of how recommendations made by the division and the
contracting agency were acted upon and an explanation of why action upon
such recommendations did not lead to the desired level of participation
of MBEs and/or WBEs.
(ii) The agency M/WBE officer shall provide written notice of requests
for such modifications to the division and the city chief procurement
officer and shall not approve any such request for modification without
the approval of the city chief procurement officer, provided that the
city chief procurement officer, upon adequate assurances of an agency's
ability to administer its utilization plan in accordance with the
provisions of this section, may determine that further approval from the
city chief procurement officer is not required with respect to such
requests for an agency's contracts or particular categories of an
agency's contracts. The city chief procurement officer, shall notify the
speaker of the council in writing within seven days of the approval of a
request for modification of a utilization plan, provided that where an
agency has been authorized to grant modifications without approval of
the chief procurement officer, such notice shall be provided to the
speaker of the council by the agency. Such notification shall include,
but not be limited to, the name of the contractor, the original
utilization plan, the modification request, including all documentation,
and an explanation for the approval of such request.
(iii) The agency M/WBE officer shall provide written notice to the
contractor of its determination that shall include the reasons for such
determination.
(13) For each contract in which a contracting agency has established
participation goals, the agency shall evaluate and assess the
contractor's performance in meeting such goals. Such evaluation and
assessment shall be a part of the contractor's overall contract
performance evaluation required pursuant to section 333 of the charter.
j. Determining credit for MBE and WBE participation. (1) An agency's
achievement of its annual goals shall be calculated as follows:
(i) The total dollar amount that an agency has paid or is obligated to
pay to a primecontractor which is an MBE or WBE may be credited toward
the relevant goal.
(ii) The total dollar amount that a prime contractor has paid or is
obligated to pay to a subcontractor which is an MBE or WBE may be
credited toward the relevant goal.
(iii) For requirements contracts, credit may be given for the actual
dollar amount paid under the contract.
(iv) Where one or more MBEs or WBEs is participating in a qualified
joint venture, the dollar amount of the percentage of total profit to
which MBEs or WBEs are entitled pursuant to the joint venture agreement
shall be credited toward the relevant goal.
(v) No credit shall be given for participation in a contract by an MBE
or WBE that does not perform a commercially useful function.
(vi) No credit shall be given for the participation in a contract by
any company that has not been certified as an MBE or WBE in accordance
with section 1304 of the charter.
(vii) In the case of a contract for which the contractor is paid on a
commission basis, the dollar amount of the contract may be determined on
the basis of the commission earned or reasonably anticipated to be
earned under the contract.
(viii) No credit shall be given to a contractor for participation in a
contract by a graduate MBE or WBE.
(2) A contractor's achievement of the goals established in its
utilization plan shall be calculated in the same manner as described for
calculating the achievement of agency utilization goals as described in
paragraph (1) of this subdivision; provided that no credit shall be
given to the contractor for the participation of a company that is not
certified in accordance with section 1304 of the charter before the date
that the agency approves the subcontractor.
k. Small purchases. (1) Each agency shall, consistent with the
participation goals established in subdivision d of this section and
such agency's M/WBE utilization plan, establish goals for purchases
valued at or below five thousand dollars which shall be made from MBEs
and/or WBEs.
(2) Whenever an agency solicits bids or proposals for small purchases
pursuant to section three hundred fourteen of the charter, the agency
shall maintain records identifying the MBEs and WBEs it solicited, which
shall become part of the contract file.
l. Compliance reporting. (1) The city chief procurement officer, in
consultation with the division shall prepare and submit semiannual
reports to the speaker of the council as described in this section. A
preliminary report containing information for the fiscal year in
progress shall be submitted to the speaker of the council by April 1,
2007, and annually thereafter, and a final report containing information
for the preceding fiscal year shall be submitted to the speaker of the
council by October 1, 2007 and annually thereafter. The reports, which
shall also be posted on the division's website, shall contain the
following information, disaggregated by agency:
(i) the number and total dollar value of contracts awarded,
disaggregated by industry classification, provided that contracts for
amounts under five thousand dollars need not be disaggregated by
industry;
(ii) The number and total dollar value of contracts awarded to MBEs
and WBEs, disaggregated by minority and gender group and industry
classification, provided that contracts for amounts under five thousand
dollars need not be disaggregated by industry;
(iii) the total number and total dollar value of contracts awarded
valued at less than five thousand dollars and the total number and total
dollar value of such contracts awarded to MBEs and WBEs, disaggregated
by minority and gender group;
(iv) the total number and total dollar value of contracts awarded
valued at between five thousand and one hundred thousand dollars and the
total number and total dollar value of such contracts awarded to MBEs
and WBEs, disaggregated by minority and gender group and industry
classification;
(v) the total number and total dollar value of contracts awarded
valued at between one hundred thousand dollars and one million dollars
and the total number and total dollar value of such contracts awarded to
MBEs and WBEs, disaggregated by minority and gender group and industry
classification;
(vi) the total number and total dollar value of contracts awarded
valued at over one million dollars and the total number and total dollar
value of such contracts awarded to MBEs and WBEs, disaggregated by
minority and gender group and industry classification;
(vii) for those contracts for which an agency set participation goals
in accordance with subdivision i of this section:
A. The number and total dollar amount of such contracts disaggregated
by industry classification;
B. the number and total dollar value of such contracts that were
awarded to qualified joint ventures and the total dollar amount
attributed to the MBE or WBE joint venture partners, disaggregated by
minority and gender group and industry classification;
C. The number and total dollar value of subcontracts entered into
pursuant to such contracts and the number and total dollar amount of
such subcontracts awarded to MBEs and WBEs, disaggregated by minority
and gender group and industry classification; and
D. a list of the requests for waiver or modification of participation
requirements for such contracts made pursuant to paragraph 12 of
subdivision i of this section and the determinations made with respect
to such requests, and the number and dollar amount of those contracts
for which such waivers or modifications were granted, disaggregated by
industry classification;
(viii) a detailed list of each complaint received pursuant to
paragraph 1 of subdivision o of this section which shall, at a minimum,
include the nature of each complaint and the action taken in
investigating and addressing such complaint including whether and in
what manner the enforcement provisions of subdivision o of this section
were invoked and the remedies applied;
(ix) a detailed list of all non-compliance findings made pursuant to
paragraph 4 of subdivision o of this section and actions taken in
response to such findings;
(x) the number of firms certified or recertified in accordance with
section 1304 of the charter during the six months immediately preceding
such report;
(xi) the number and percentage of contracts audited pursuant to
section paragraph 10 of subdivision e of this section and a summary of
the results of each audit.
(xii) a summary of efforts to reduce or eliminate barriers to
competition as required pursuant to paragraph 11 of subdivision e of
this section;
(xiii) A list of all solicitations submitted to the city chief
procurement officer pursuant to subparagraph vi of paragraph 2 of
subdivision h of this section and a summary of the determination made
regarding each such submission; and
(xiv) any other information as may be required by the commissioner.
(2) The annual reports submitted in October shall, in addition,
contain a determination made by the commissioner, as to whether each
agency has made substantial progress toward achieving its utilization
goals and whether the city has made substantial progress toward
achieving the citywide goals established pursuant to subdivision d of
this section. The first three annual reports shall also include
detailed information about steps that agencies have taken to initiate
and ramp up their efforts to comply with the requirements of this
section.
(3) The data that provide the basis for the reports required by this
subdivision shall be made available electronically to the council at the
time the reports are submitted.
m. Agency compliance. (1) The agency shall submit to the commissioner
and the city chief procurement officer such information as is necessary
for the city chief procurement officer to complete his or her report as
required in subdivision l of this section. The commissioner and the city
chief procurement officer shall review each agency's submissions and
whenever it has been determined that an agency is not making adequate
progress toward the goals established in its agency utilization plan,
the commissioner and the city chief procurement officer shall act to
improve such agency's performance, and may take any of the following
actions:
(i) require the agency to submit more frequent reports about its
procurement activity;
(ii) require the agency to notify the commissioner and the city chief
procurement officer, prior to solicitation of bids or proposals for,
and/or prior to award of, contracts in any category where the agency has
not made adequate progress toward achieving its utilization goals;
(iii) reduce or rescind contract processing authority delegated by the
mayor pursuant to sections 317 and 318 of the charter; and
(iv) any other action the city chief procurement officer or the
commissioner deem appropriate.
(2) Noncompliance. Whenever the city chief procurement officer or the
commissioner finds that an agency has failed to comply with its duties
under this section, he or she shall attempt to resolve such
noncompliance informally with the agency head. In the event that the
agency fails to remedy its noncompliance after such informal efforts,
the city chief procurement officer shall submit such findings in writing
to the mayor and the speaker of the council, and the mayor shall take
appropriate measures to ensure compliance.
(3) Failure by an agency to submit information required by the
division or the city chief procurement officer, in accordance with this
section, including but not limited to the utilization plan required
pursuant to subdivision g of this section, shall be deemed
noncompliance.
n. Pre-qualification. An agency establishing a list of pre-qualified
bidders or proposers may deny pre-qualification to prospective
contractors who fail to demonstrate in their application for
pre-qualification that they have complied with applicable federal, state
and local requirements for participation of MBEs and WBEs in
procurements. A denial of pre-qualification may be appealed pursuant to
applicable procurement policy board rules.
o. Enforcement. (1) Any person who believes that a violation of the
requirements of this section, rules promulgated pursuant to its
provisions, or any provision of a contract that implements this section
or such rules, including, but not limited to, any contractor utilization
plan, has occurred may submit a complaint in writing to the division,
the city chief procurement officer and the comptroller. Such complaint
shall be signed and dated. The division shall promptly investigate such
complaint and determine whether there has been a violation.
(2) Any complaint alleging fraud, corruption or other criminal
behavior on, the part of a bidder, proposer, contractor, subcontractor
or supplier shall be referred to the commissioner of the department of
investigation.
(3) Contract award. (i) When an agency receives a protest from a
bidder or proposer regarding a contracting action that is related to
this section, the agency shall send copies of the protest and any appeal
thereof, and any decisions made on the protest or such appeal, to the
division and the comptroller.
(ii) Whenever a contracting agency has determined that a bidder or
proposer has violated this section, or rules promulgated pursuant to its
provisions, the agency may disqualify such bidder or proposer from
competing for such contract and the agency may revoke such bidder's or
proposer's prequalification status.
(4) Contract administration. (i) Whenever an agency believes that a
contractor or a subcontractor is not in compliance with this section,
rules promulgated pursuant to its provisions or any provision of a
contract that implements this section, including, but not limited to any
contractor utilization plan, the agency shall send a written notice to
the city chief procurement officer, the division and the contractor
describing the alleged noncompliance and offering an opportunity to be
heard. The agency shall then conduct an investigation to determine
whether such contractor or subcontractor is in compliance.
(ii) In the event that a contractor has been found to have violated
this section, rules promulgated pursuant to its provisions, or any
provision of a contract that implements this section, including, but not
limited to any contractor utilization plan, the contracting agency
shall, after consulting with the city chief procurement officer and the
division, determine whether any of the following actions should be
taken:
(A) enter into an agreement with the contractor allowing the
contractor to cure the violation;
(B) revoke the contractor's pre-qualification to bid or make proposals
for future contracts;
(C) make a finding that the contractor is in default of the contract;
(D) terminate the contract;
(E) declare the contractor to be in breach of contract;
(F) withhold payment or reimbursement;
(G) determine not to renew the contract;
(H) assess actual and consequential damages;
(I) assess liquidated damages or reduction of fees, provided that
liquidated damages may be based on amounts representing costs of delays
in carrying out the purposes of the program established by this section,
or in meeting the purposes of the contract, the costs of meeting
utilization goals through additional procurements, the administrative
costs of investigation and enforcement, or other factors set forth in
the contract;
(J) exercise rights under the contract to procure goods, services or
construction from another contractor and charge the cost of such
contract to the contractor that has been found to be in noncompliance;
or
(K) take any other appropriate remedy.
(5) To the extent available pursuant to rules of the procurement
policy board, a contractor may seek resolution of a dispute regarding a
contract related to this section. The contracting agency shall submit a
copy of such submission to the division.
(6) Whenever an agency has reason to believe that an MBE or WBE is not
qualified for certification, or is participating in a contract in a
manner that does not serve a commercially useful function, or has
violated any provision of this section, the agency shall notify the
commissioner who shall determine whether the certification of such
business enterprise should be revoked.
(7) Statements made in any instrument submitted to a contracting
agency pursuant to these rules shall be submitted under penalty of
perjury and any false or misleading statement or omission shall be
grounds for the application of any applicable criminal and/or civil
penalties for perjury. The making of a false or fraudulent statement by
an MBE or WBE in any instrument submitted pursuant to these rules shall,
in addition, be grounds for revocation of its certification.
(8) A contractor's record in implementing its contractor utilization
plan shall be a factor in the evaluation of its performance. Whenever a
contracting agency determines that a contractor's compliance with a
contractor utilization plan has been unsatisfactory, the agency shall,
after consultation with the city chief procurement officer, file an
advice of caution form for inclusion in VENDEX as caution data.
p. Procurements by elected officials and the council. (1) In the case
of procurements by independently elected city officials other than the
mayor, where these rules provide for any action to be taken by the city
chief procurement officer, such action shall instead be taken by such
elected officials.
(2) In the case of procurements by the council, where these rules
provide for any action to be taken by the city chief procurement
officer, such action shall instead be taken by the speaker of the
council.
q. Applicability. Agencies shall not be required to apply
participation requirements to the following types of contracts:
(i) those subject to federal or state funding requirements which
preclude the city from imposing the requirements of this subdivision;
(ii) those subject to federal or state law participation requirements
for MBEs and/or WBEs;
(iii) contracts between agencies;
(iv) procurements made through the united states general services
administration or another federal agency, or through the New York state
office of general services or another state agency, or any other
governmental agency.
(v) emergency procurements pursuant to section three hundred fifteen
of the charter;
(vi) sole source procurements pursuant to section three hundred
twenty-one of the charter;
(vii) small purchases as defined pursuant to section three hundred
fourteen of the charter; and
(viii) contracts awarded to not-for-profit organizations.
r. Comptroller. The comptroller shall randomly examine contracts for
which contractor utilization plans are established to assess compliance
with such plans. All solicitations for contracts for which contractor
utilization plans are to be established shall include notice of
potential comptroller examinations.