§ 310 — Definitions

* § 310. Definitions. As used in this article, the following terms\nshall have the following meanings:\n 1. "Certified business" shall mean a business verified as a minority\nor women-owned business enterprise pursuant to section three hundred\nfourteen of this article.\n 2. "Contracting agency" shall mean a state agency which is a party or\na proposed party to a state contract or, in the case of a state contract\ndescribed in paragraph (c) of subdivision thirteen of this section,\nshall mean the New York state housing finance agency, housing trust fund\ncorporation or affordable housing corporation, whichever has made or\nproposes to make the grant or loan for the state assisted housing\nproject.\n 3. "Contractor" shall mean an individual, a business enterprise,\nincluding a sole proprietorship, a partnership, a corporation, a\nnot-for-profit corporation, or any other party to a state contract, or a\nbidder in conjunction with the award of a state contract or a proposed\nparty to a state contract.\n 4. "Director" shall mean the director of the division of minority and\nwomen's business development in the department of economic development.\n 5. "Large county" shall mean a county having a population in excess of\ntwo hundred eighty-five thousand according to the most recent federal\ndecennial census, provided however, that a county having a population in\nexcess of two hundred eighty-five thousand according to the nineteen\nhundred eighty federal decennial census shall continue to be a large\ncounty thereafter notwithstanding a later census showing a population of\nless than two hundred eighty-five thousand for such county.\n 6. "Metropolitan area" shall mean a city with a population of one\nmillion or more and a county having a population in excess of one\nmillion and immediately contiguous to such city.\n 7. "Minority-owned business enterprise" shall mean a business\nenterprise, including a sole proprietorship, partnership, limited\nliability company or corporation that is:\n (a) at least fifty-one percent owned by one or more minority group\nmembers;\n (b) an enterprise in which such minority ownership is real,\nsubstantial and continuing;\n (c) an enterprise in which such minority ownership has and exercises\nthe authority to control independently the day-to-day business decisions\nof the enterprise;\n (d) an enterprise authorized to do business in this state and\nindependently owned and operated;\n (e) an enterprise owned by an individual or individuals, whose\nownership, control and operation are relied upon for certification, with\na personal net worth that does not exceed fifteen million dollars, and\nsuch other amount as the director shall set forth in regulations, as\nadjusted annually on the first of January for inflation according to the\nconsumer price index of the previous year; and\n (f) an enterprise that is a small business pursuant to subdivision\ntwenty of this section.\n 8. "Minority group member" shall mean a United States citizen or\npermanent resident noncitizen who is and can demonstrate membership in\none of the following groups:\n (a) Black persons having origins in any of the Black African racial\ngroups;\n (b) Hispanic/Latino persons of Mexican, Puerto Rican, Dominican,\nCuban, Central or South American of either Indian or Hispanic origin,\nregardless of race;\n (c) Native American or Alaskan native persons having origins in any of\nthe original peoples of North America.\n (d) Asian and Pacific Islander persons having origins in any of the\nFar East countries, South East Asia, the Indian subcontinent or the\nPacific Islands.\n 9. "Utilization plan" shall mean a plan prepared by a contractor and\nsubmitted in connection with a proposed state contract. The utilization\nplan shall identify certified minority or women-owned business\nenterprises, if known, that have committed to perform work in connection\nwith the proposed state contract as well as any such enterprises, if\nknown, which the contractor intends to use in connection with the\ncontractor's performance of the proposed state contract. The plan shall\nspecifically contain a list, including the name, address and telephone\nnumber, of each certified enterprise with which the contractor intends\nto subcontract.\n 10. "Office" shall mean the division of minority and women's business\ndevelopment in the department of economic development.\n 11. "State agency" shall mean (a) (i) any state department, or (ii)\nany division, board, commission or bureau of any state department, or\n(iii) the state university of New York and the city university of New\nYork, including all their constituent units except community colleges\nand the independent institutions operating statutory or contract\ncolleges on behalf of the state, or (iv) a board, a majority of whose\nmembers are appointed by the governor or who serve by virtue of being\nstate officers or employees as defined in subparagraph (i), (ii) or\n(iii) of paragraph (i) of subdivision one of section seventy-three of\nthe public officers law:\n (b) a "state authority," as defined in subdivision one of section two\nof the public authorities law, and the following:\n Albany County Airport Authority;\n Albany Port District Commission;\n Alfred, Almond, Hornellsville Sewer Authority;\n Battery Park City Authority;\n Cayuga County Water and Sewer Authority;\n (Nelson A. Rockefeller) Empire State Plaza Performing Arts\n Center Corporation;\n Industrial Exhibit Authority;\n Livingston County Water and Sewer Authority;\n Long Island Power Authority;\n Long Island Rail Road;\n Long Island Market Authority;\n Manhattan and Bronx Surface Transit Operating Authority;\n Metro-North Commuter Railroad;\n Metropolitan Suburban Bus Authority;\n Metropolitan Transportation Authority;\n Natural Heritage Trust;\n New York City Transit Authority;\n New York Convention Center Operating Corporation;\n New York State Bridge Authority;\n New York State Olympic Regional Development Authority;\n New York State Thruway Authority;\n Niagara Falls Public Water Authority;\n Niagara Falls Water Board;\n Port of Oswego Authority;\n Power Authority of the State of New York;\n Roosevelt Island Operating Corporation;\n Schenectady Metroplex Development Authority;\n State Insurance Fund;\n Staten Island Rapid Transit Operating Authority;\n State University Construction Fund;\n Syracuse Regional Airport Authority;\n Triborough Bridge and Tunnel Authority.\n Upper Mohawk valley regional water board.\n Upper Mohawk valley regional water finance authority.\n Upper Mohawk valley memorial auditorium authority.\n Urban Development Corporation and its subsidiary corporations.\n (c) the following only to the extent of state contracts entered into\nfor its own account or for the benefit of a state agency as defined in\nparagraph (a) or (b) of this subdivision:\n Dormitory Authority of the State of New York;\n Facilities Development Corporation;\n New York State Energy Research and Development Authority;\n New York State Science and Technology Foundation.\n 12. "State assisted housing project" shall mean, for such projects\nwhich receive from the New York state housing finance agency, the\naffordable housing corporation, the housing trust fund corporation or\nthe division of housing and community renewal a grant or loan for all or\npart of the total project cost:\n (a) a "permanent housing project for homeless families" or "project"\nas defined in subdivision five of section sixty-four of the private\nhousing finance law;\n (b) a "project" as defined in subdivision twelve of section one\nthousand one hundred one of the private housing finance law provided\nsaid project is located in a large county and consists of more than\ntwelve residential units at a single site;\n (c) "affordable home ownership development programs" or "project" as\ndefined in subdivision eight of section one thousand one hundred eleven\nof the private housing finance law provided said project is located in a\nmetropolitan area as herein defined and consists of more than twelve\nresidential units at a single site;\n (d) a "turnkey/enhanced rental project" or "project" as defined in\nsubdivision two of section one thousand one hundred six-a of the private\nhousing finance law;\n (e) "infrastructure improvements" as defined in subdivision two of\nsection one thousand one hundred thirty-one of the private housing\nfinance law, to the extent that such "infrastructure improvements" are\napplied for in connection with a state assisted housing project as\ndefined in paragraphs (a) through (d) of this subdivision and provided\nfurther that the applicant for such infrastructure improvements and for\nsuch state assisted housing project are identical.\n 13. "State contract" shall mean: (a) a written agreement or purchase\norder instrument, providing for a total expenditure in excess of\ntwenty-five thousand dollars, whereby a contracting agency is committed\nto expend or does expend funds in return for labor, services including\nbut not limited to legal, financial and other professional services,\nsupplies, equipment, materials or any combination of the foregoing, to\nbe performed for, on behalf of, or rendered or furnished to the\ncontracting agency; (b) a written agreement in excess of one hundred\nthousand dollars whereby a contracting agency is committed to expend or\ndoes expend funds for the acquisition, construction, demolition,\nreplacement, major repair or renovation of real property and\nimprovements thereon; and (c) a written agreement in excess of one\nhundred thousand dollars whereby the owner of a state assisted housing\nproject is committed to expend or does expend funds for the acquisition,\nconstruction, demolition, replacement, major repair or renovation of\nreal property and improvements thereon for such project.\n 14. "Subcontract" shall mean an agreement providing for a total\nexpenditure in excess of twenty-five thousand dollars for the\nconstruction, demolition, replacement, major repair, renovation,\nplanning or design of real property and improvements thereon between a\ncontractor and any individual or business enterprise, including a sole\nproprietorship, partnership, corporation, or not-for-profit corporation,\nin which a portion of a contractor's obligation under a state contract\nis undertaken or assumed, but shall not include any construction,\ndemolition, replacement, major repair, renovation, planning or design of\nreal property or improvements thereon for the beneficial use of the\ncontractor.\n 15. "Women-owned business enterprise" shall mean a business\nenterprise, including a sole proprietorship, partnership, limited\nliability company or corporation that is:\n (a) at least fifty-one percent owned by one or more United States\ncitizens or permanent resident noncitizens who are women;\n (b) an enterprise in which the ownership interest of such women is\nreal, substantial and continuing;\n (c) an enterprise in which such women ownership has and exercises the\nauthority to control independently the day-to-day business decisions of\nthe enterprise;\n (d) an enterprise authorized to do business in this state and\nindependently owned and operated;\n (e) an enterprise owned by an individual or individuals, whose\nownership, control and operation are relied upon for certification, with\na personal net worth that does not exceed fifteen million dollars, and\nsuch other amount as the director shall set forth in regulations, as\nadjusted annually on the first of January for inflation according to the\nconsumer price index of the previous year; and\n (f) an enterprise that is a small business pursuant to subdivision\ntwenty of this section.\n A firm owned by a minority group member who is also a woman may be\ncertified as a minority-owned business enterprise, a women-owned\nbusiness enterprise, or both, and may be counted towards either a\nminority-owned business enterprise goal or a women-owned business\nenterprise goal, in regard to any contract or any goal, set by an agency\nor authority, but such participation may not be counted towards both\nsuch goals. Such an enterprise's participation in a contract may not be\ndivided between the minority-owned business enterprise goal and the\nwomen-owned business enterprise goal.\n 16. "Statewide advocate" shall mean the person appointed by the\ndirector to serve in the capacity of the minority and women-owned\nbusiness enterprise statewide advocate and procurement ombudsman.\n 17. "Commissioner" shall mean the commissioner of the department of\neconomic development.\n 18. "Lessee" shall mean an individual, a business enterprise,\nincluding a sole proprietorship, a partnership, a corporation, a\nnot-for-profit corporation, or any other party to a lease with a state\nagency as defined in subdivision eleven of this section, or a respondent\nin conjunction with the award of such a lease or a proposed lessee with\na state agency as defined in subdivision eleven of this section.\n 19. "Personal net worth" shall mean the aggregate adjusted net value\nof the assets of an individual remaining after total liabilities are\ndeducted. Personal net worth includes the individual's share of assets\nheld jointly with said individual's spouse and does not include the\nindividual's ownership interest in the certified minority and\nwomen-owned business enterprise, the individual's equity in his or her\nprimary residence, ownership interest in a holding company established\nfor the exclusive and sole purpose of leasing machinery, equipment, or\nvehicles exclusively to the certified minority or women-owned business\nenterprise that is majority owned by the minority group member or woman\nrelied upon for certification, and the holding company does not own any\nother assets of any kind, or up to seven hundred fifty thousand dollars\nof the present cash value of any qualified retirement savings plan or\nindividual retirement account held by the individual less any penalties\nfor early withdrawal.\n 20. "Small business" as used in this section, unless otherwise\nindicated, shall mean a business which has a significant business\npresence in the state, is independently owned and operated, not dominant\nin its field and employs, based on its industry, a certain number of\npersons as determined by the director, but not to exceed three hundred,\nexcept during a declared state disaster emergency as defined pursuant to\nsection twenty-eight of this chapter, not to exceed three hundred\nemployees who work thirty or more hours per week over the period of\nfifty-two weeks for a total of one thousand five hundred sixty hours\nworked, taking into consideration factors which include, but are not\nlimited to, federal small business administration standards pursuant to\n13 CFR part 121 and any amendments thereto. The director may issue\nregulations on the construction of the terms in this definition. For\npurposes of this subdivision, an employee may break from employment for\nup to thirteen weeks without the fifty-two week lookback period\nresetting.\n 21. "The disparity study" shall refer to the disparity study\ncommissioned by the department of economic development, pursuant to\nsection three hundred twelve-a of this article, and published on June\nthirtieth, two thousand seventeen.\n 22. "Diversity practices" shall mean the contractor's practices and\npolicies with respect to:\n (a) utilizing or mentoring certified minority and women-owned business\nenterprises in contracts awarded by a state agency or other public\ncorporation, as subcontractors and suppliers; and\n (b) entering into partnerships, joint ventures or other similar\narrangements with certified minority and women-owned business\nenterprises as defined in this article or other applicable statute or\nregulation governing an entity's utilization of minority or women-owned\nbusiness enterprises.\n 23. "Provisional MWBE Certification" shall mean minority and\nwomen-owned business enterprise certification status which shall not\nexceed one year, but which may be renewed by the director.\n * NB Repealed July 1, 2028\n