2010 New York Code
EXC - Executive
Article 15-A - (310 - 318) 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 two thousand ten disparity study,
  consistent with the purposes of this article, to attempt to achieve  the
  following results with regard to total annual statewide procurement:
    (a)   construction  industry  for  certified  minority-owned  business
  enterprises: fourteen and thirty-four hundredths percent;
    (b)  construction  industry   for   certified   women-owned   business
  enterprises: eight and forty-one hundredths percent;
    (c)  construction related professional services industry for certified
  minority-owned business enterprises: thirteen and twenty-one  hundredths
  percent;
    (d)  construction related professional services industry for certified
  women-owned  business  enterprises:  eleven  and  thirty-two  hundredths
  percent;
    (e)   non-construction   related   services   industry  for  certified
  minority-owned  business  enterprises:  nineteen  and  sixty  hundredths
  percent;
    (f)   non-construction   related   services   industry  for  certified
  women-owned business enterprises: seventeen  and  forty-four  hundredths
  percent;
    (g)   commodities   industry  for  certified  minority-owned  business
  enterprises: sixteen and eleven hundredths percent;
    (h)  commodities   industry   for   certified   women-owned   business
  enterprises:  ten and ninety-three hundredths percent;
    (i)  overall  agency  total  dollar value of procurement for certified
  minority-owned business enterprises: sixteen and fifty-three  hundredths
  percent;
    (j)  overall  agency  total  dollar value of procurement for certified
  women-owned business  enterprises:  twelve  and  thirty-nine  hundredths
  percent; and
    (k)  overall  agency  total  dollar value of procurement for certified
  minority, women-owned business enterprises: twenty-eight and  ninety-two
  hundredths percent.
    1-a.  The  director  shall  ensure  that  each  state  agency has been
  provided with a copy of the two thousand ten disparity study.
    1-b. Each agency shall develop and adopt agency-specific  goals  based
  on the findings of the two thousand ten disparity study.
    2. The director shall promulgate rules and regulations pursuant to the
  goals  established  in  subdivision  one  of  this  section 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; and
    (ii) the availability, as contained within  the  study,  of  certified
  minority  and  women-owned business enterprises to respond competitively
  to the potential subcontract opportunities;
    (c) require that each agency  provide  a  current  list  of  certified
  minority business enterprises to each prospective contractor;
    (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)  provide  for  joint  ventures,  which  a  bidder may count toward
  meeting its minority and women-owned business enterprise participation;
    (f) 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;
    (g)  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;
    (h) provide for the collection of  statistical  data  by  each  agency
  concerning   actual   minority   and   women-owned  business  enterprise
  participation; and
    (i) require each agency to consult the most  current  disparity  study
  when  calculating  agency-wide and contract specific participation goals
  pursuant to this article.
    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  provided  to  the  contracting
  agency  by the office; (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 availability of certified businesses;
    (b)  implement  a program that will enable the agency to evaluate each
  contract to determine  the  appropriateness  of  the  goal  pursuant  to
  subdivision one of this section;
    (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 meet the maximum
  feasible portion of the agency's goals 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 within a reasonable period of
  time as established by  the  director;  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  periodic  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) 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. 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
  located  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.
    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 a pre-bid conference; 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  there  has  been  written  notification  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 Expires December 31, 2016