§ 313 — Opportunities for minority and women-owned business enterprises

* § 313. Opportunities for minority and women-owned business\nenterprises. 1. Goals and requirements for agencies and contractors.\nEach agency shall structure procurement procedures for contracts made\ndirectly or indirectly to minority and women-owned business enterprises,\nin accordance with the findings of the disparity study, consistent with\nthe purposes of this article, to attempt to achieve the recommended\nresults with regard to total annual statewide procurement in the\nfollowing industries:\n (a) construction industry for certified minority-owned business\nenterprises;\n (b) construction industry for certified women-owned business\nenterprises;\n (c) construction related professional services industry for certified\nminority-owned business enterprises;\n (d) construction related professional services industry for certified\nwomen-owned business enterprises;\n (e) non-construction related services industry for certified\nminority-owned business enterprises;\n (f) non-construction related services industry for certified\nwomen-owned business enterprises;\n (g) commodities industry for certified minority-owned business\nenterprises;\n (h) commodities industry for certified women-owned business\nenterprises;\n (i) overall agency total dollar value of procurement for certified\nminority-owned business enterprises;\n (j) overall agency total dollar value of procurement for certified\nwomen-owned business enterprises; and\n (k) overall agency total dollar value of procurement for certified\nminority, women-owned business enterprises.\n 1-a. The director shall ensure that each state agency has been\nprovided with an electronic copy of the disparity study.\n 1-b. Each agency shall develop and adopt agency-specific goals based\non the findings of the disparity study.\n 1-c. The goals set pursuant to subdivision one of this section shall\nbe consistent with the findings of the disparity study.\n 2. The director shall promulgate rules and regulations based on\nsubdivision one of this section and the findings of the disparity study\nthat provide measures and procedures to ensure that certified minority\nand women-owned businesses shall be given the opportunity for maximum\nfeasible participation in the performance of state contracts and to\nassist in the agency's identification of those state contracts for which\nminority and women-owned certified businesses may best bid to actively\nand affirmatively promote and assist their participation in the\nperformance of state contracts so as to facilitate the agency's\nachievement of the maximum feasible portion of the goals for state\ncontracts to such businesses.\n 2-a. The director shall promulgate rules and regulations that will\naccomplish the following:\n (a) provide for the certification and decertification of minority and\nwomen-owned business enterprises for all agencies through a single\nprocess that meets applicable requirements;\n (b) require that each contract solicitation document accompanying each\nsolicitation set forth the expected degree of minority and women-owned\nbusiness enterprise participation based, in part, on:\n (i) the potential subcontract opportunities available in the prime\nprocurement contract;\n (ii) the availability, as contained within the study, of certified\nminority and women-owned business enterprises to respond competitively\nto the potential subcontract opportunities as reflected in the\ndivision's directory of certified minority and women-owned business\nenterprises; and\n (iii) the findings of the disparity study;\n (c) require that each agency provide a current list of certified\nminority business enterprises to each prospective contractor or direct\nthem to the division's directory of certified minority and women-owned\nbusiness enterprises for such purpose;\n (d) allow a contractor that is a certified minority-owned or\nwomen-owned business enterprise to use the work it performs to meet\nrequirements for use of certified minority-owned or women-owned business\nenterprises as subcontractors;\n (e) establish criteria for agencies to credit the participation of\nminority and women-owned business enterprises towards the achievement of\nthe minority and women-owned business enterprise participation goals on\na state contract based on the commercially useful function provided by\neach minority and women-owned business enterprise on the contract;\n (f) provide for joint ventures, which a bidder may count toward\nmeeting its minority and women-owned business enterprise participation;\n (g) consistent with subdivision six of this section, provide for\ncircumstances under which an agency may waive obligations of the\ncontractor relating to minority and women-owned business enterprise\nparticipation;\n (h) require that an agency verify that minority and women-owned\nbusiness enterprises listed in a successful bid are actually\nparticipating to the extent listed in the project for which the bid was\nsubmitted;\n (i) provide for the collection of statistical data by each agency\nconcerning actual minority and women-owned business enterprise\nparticipation;\n (j) require each agency to consult the most current disparity study\nwhen calculating agency-wide and contract specific participation goals\npursuant to this article; and\n Such rules shall set forth the maximum personal net worth of a\nminority group member or woman who may be relied upon to certify a\nbusiness as a minority-owned business enterprise or women-owned business\nenterprise, and may establish different maximum levels of personal net\nworth for minority group members and women on an industry-by-industry\nbasis for such industries as the director shall determine. Such\nregulations relating to the classification of the industry-by-industry\npersonal net worth thresholds above the fifteen million dollar threshold\nshall consider the personal net worth of the owners of both certified\nand non-certified businesses, including but not limited to, prime\ncontractors and subcontractors, as well as any such other factors needed\nto establish such thresholds. The provisions of the regulations\npertaining to personal net worth shall, to the extent practicable, be\nimplemented by June thirtieth, two thousand twenty and shall consider\nadjustments for inflation annually on January first of the previous year\naccording to the consumer price index.\n 3. Solely for the purpose of providing the opportunity for meaningful\nparticipation by certified businesses in the performance of state\ncontracts as provided in this section, state contracts shall include\nleases of real property by a state agency to a lessee where: the terms\nof such leases provide for the construction, demolition, replacement,\nmajor repair or renovation of real property and improvements thereon by\nsuch lessee; and the cost of such construction, demolition, replacement,\nmajor repair or renovation of real property and improvements thereon\nshall exceed the sum of one hundred thousand dollars. Reports to the\ndirector pursuant to section three hundred fifteen of this article shall\ninclude activities with respect to all such state contracts. Contracting\nagencies shall include or require to be included with respect to state\ncontracts for the acquisition, construction, demolition, replacement,\nmajor repair or renovation of real property and improvements thereon,\nsuch provisions as may be necessary to effectuate the provisions of this\nsection in every bid specification and state contract, including, but\nnot limited to: (a) provisions requiring contractors to make a good\nfaith effort to solicit active participation by enterprises identified\nin the directory of certified businesses; (b) requiring the parties to\nagree as a condition of entering into such contract, to be bound by the\nprovisions of section three hundred sixteen of this article; and (c)\nrequiring the contractor to include the provisions set forth in\nparagraphs (a) and (b) of this subdivision in every subcontract in a\nmanner that the provisions will be binding upon each subcontractor as to\nwork in connection with such contract. Provided, however, that no such\nprovisions shall be binding upon contractors or subcontractors in the\nperformance of work or the provision of services that are unrelated,\nseparate or distinct from the state contract as expressed by its terms,\nand nothing in this section shall authorize the director or any\ncontracting agency to impose any requirement on a contractor or\nsubcontractor except with respect to a state contract.\n 4. In the implementation of this section, the contracting agency shall\n(a) consult the findings contained within the disparity study evidencing\nrelevant industry specific disparities in the utilization of minority\nand women-owned businesses relative to their availability;\n (b) implement a program that will enable the agency to evaluate each\ncontract to determine the appropriate goal for participation by\nminority-owned business enterprises and women-owned business\nenterprises;\n (c) consider where practicable, the severability of construction\nprojects and other bundled contracts; and\n (d) consider compliance with the requirements of any federal law\nconcerning opportunities for minority and women-owned business\nenterprises which effectuates the purpose of this section. The\ncontracting agency shall determine whether the imposition of the\nrequirements of any such law duplicate or conflict with the provisions\nhereof and if such duplication or conflict exists, the contracting\nagency shall waive the applicability of this section to the extent of\nsuch duplication or conflict.\n 5. (a) Contracting agencies shall administer the rules and regulations\npromulgated by the director in a good faith effort to achieve the\nmaximum feasible participation by minority and women owned business\nenterprises adopted pursuant to this article and the regulations of the\ndirector. Such rules and regulations: shall require a contractor to\nsubmit a utilization plan after bids are opened, when bids are required,\nbut prior to the award of a state contract; shall require the\ncontracting agency to review the utilization plan submitted by the\ncontractor and to post the utilization plan and any waivers of\ncompliance issued pursuant to subdivision six of this section on the\nwebsite of the contracting agency; shall require the contracting agency\nto notify the contractor in writing within a period of time specified by\nthe director as to any deficiencies contained in the contractor's\nutilization plan; shall require remedy thereof within a period of time\nspecified by the director; shall require the contractor to submit\ncompliance reports relating to the operation and implementation of any\nutilization plan; shall not allow any automatic waivers but shall allow\na contractor to apply for a partial or total waiver of the minority and\nwomen-owned business enterprise participation requirements pursuant to\nsubdivisions six and seven of this section; shall allow a contractor to\nfile a complaint with the director pursuant to subdivision eight of this\nsection in the event a contracting agency has failed or refused to issue\na waiver of the minority and women-owned business enterprise\nparticipation requirements or has denied such request for a waiver; and\nshall allow a contracting agency to file a complaint with the director\npursuant to subdivision nine of this section in the event a contractor\nis failing or has failed to comply with the minority and women-owned\nbusiness enterprise participation requirements set forth in the state\ncontract where no waiver has been granted.\n (b) The rules and regulations promulgated pursuant to this subdivision\nregarding a utilization plan shall provide that where enterprises have\nbeen identified within a utilization plan, a contractor shall attempt,\nin good faith, to utilize such enterprise at least to the extent\nindicated. A contracting agency may require a contractor to indicate,\nwithin a utilization plan, what measures and procedures he or she\nintends to take to comply with the provisions of this article, but may\nnot require, as a condition of award of, or compliance with, a contract\nthat a contractor utilize a particular enterprise in performance of the\ncontract.\n (c) The rules and regulations promulgated pursuant to this subdivision\nregarding compliance reports shall provide that such reports shall\ninclude a standardized prepayment declaration, to be completed before\neach payment to a contractor, in which: (i) a representative of the\ncontractor lists any business that was or shall be relied upon for\ncredit toward minority and women-owned business enterprise participation\nand states under penalty of perjury that such business or businesses\nappeared on the division's directory of certified minority and\nwomen-owned business enterprises at the time of contracting and that\neach business performed or shall perform a commercially useful function\non the contract; and (ii) a representative of any business that was or\nshall be relied upon for credit toward minority and women-owned business\nenterprise participation states under penalty of perjury that it\nappeared on the division's directory of certified minority and\nwomen-owned business enterprises at the time of contracting and\nperformed or shall perform a commercially useful function on the\ncontract. Such standardized prepayment declarations shall be submitted\nelectronically on a centralized state registry designated by the\ndivision prior to any payment to a contractor. The rules and regulations\npromulgated pursuant to this subdivision may also require the contractor\nor subcontractor to submit documentation, as needed, to support any\nstatements made in such standardized prepayment declarations.\n (d) Without limiting other grounds for the disqualification of bids or\nproposals on the basis of non-responsibility, a contracting agency may\ndisqualify the bid or proposal of a contractor as being non-responsible\nfor failure to remedy notified deficiencies contained in the\ncontractor's utilization plan within a period of time specified in\nregulations promulgated by the director after receiving notification of\nsuch deficiencies from the contracting agency. Where failure to remedy\nany notified deficiency in the utilization plan is a ground for\ndisqualification, that issue and all other grounds for disqualification\nshall be stated in writing by the contracting agency. Where the\ncontracting agency states that a failure to remedy any notified\ndeficiency in the utilization plan is a ground for disqualification the\ncontractor shall be entitled to an administrative hearing, on a record,\ninvolving all grounds stated by the contracting agency. Such hearing\nshall be conducted by the appropriate authority of the contracting\nagency to review the determination of disqualification. A final\nadministrative determination made following such hearing shall be\nreviewable in a proceeding commenced under article seventy-eight of the\ncivil practice law and rules, provided that such proceeding is commenced\nwithin thirty days of the notice given by certified mail return receipt\nrequested rendering such final administrative determination. Such\nproceeding shall be commenced in the supreme court, appellate division,\nthird department and such proceeding shall be preferred over all other\ncivil causes except election causes, and shall be heard and determined\nin preference to all other civil business pending therein, except\nelection matters, irrespective of position on the calendar. Appeals\ntaken to the court of appeals of the state of New York shall be subject\nto the same preference.\n 6. (a) Where it appears that a contractor cannot, after a good faith\neffort, comply with the minority and women-owned business enterprise\nparticipation requirements set forth in a particular state contract, a\ncontractor may file a written application with the contracting agency\nrequesting a partial or total waiver of such requirements setting forth\nthe reasons for such contractor's inability to meet any or all of the\nparticipation requirements together with an explanation of the efforts\nundertaken by the contractor to obtain the required minority and\nwomen-owned business enterprise participation. In implementing the\nprovisions of this section, the contracting agency shall consider the\nnumber and types of minority and women-owned business enterprises\navailable to provide goods or services required under the contract in\nthe region in which the state contract is to be performed, the total\ndollar value of the state contract, the scope of work to be performed\nand the project size and term. If, based on such considerations, the\ncontracting agency determines there is not a reasonable availability of\ncontractors on the list of certified business to furnish services for\nthe project, it shall issue a waiver of compliance to the contractor. In\nmaking such determination, the contracting agency shall first consider\nthe availability of other business enterprises located in the region and\nshall thereafter consider the financial ability of minority and\nwomen-owned businesses located outside the region in which the contract\nis to be performed to perform the state contract.\n (b) Upon the issuance of all waivers of compliance as provided in\nparagraph (a) of this subdivision, the contracting agency shall: (i)\nreport the issuance of the waiver to the director; and (ii) publish on\nthe contracting agency's website on a monthly basis, if practicable, but\nno less than on a quarterly basis, in a location easily accessible to\nthe general public: (1) information identifying the contract, including\nthe value of the contract; (2) the name of the contractor receiving the\nwaiver; (3) the date of the waiver; (4) whether the waiver was a partial\nor total waiver; and (5) the specific contract provisions to which the\nwaiver applies.\n 7. For purposes of determining a contractor's good faith effort to\ncomply with the requirements of this section or to be entitled to a\nwaiver therefrom the contracting agency shall consider:\n (a) whether the contractor has advertised in general circulation\nmedia, trade association publications, and minority-focus and\nwomen-focus media and, in such event, (i) whether or not certified\nminority or women-owned businesses which have been solicited by the\ncontractor exhibited interest in submitting proposals for a particular\nproject by attending, or having attended, a pre-bid conference, if any,\nscheduled by the state agency awarding the state contract with certified\nminority and women-owned business enterprises; and\n (ii) whether certified businesses which have been solicited by the\ncontractor have responded in a timely fashion to the contractor's\nsolicitations for timely competitive bid quotations prior to the\ncontracting agency's bid date; and\n (b) whether the contractor provided timely written notification of\nsubcontracting opportunities on the state contract to appropriate\ncertified businesses that appear in the directory of certified\nbusinesses prepared pursuant to paragraph (f) of subdivision three of\nsection three hundred eleven of this article; and\n (c) whether the contractor can reasonably structure the amount of work\nto be performed under subcontracts in order to increase the likelihood\nof participation by certified businesses.\n 8. In the event that a contracting agency fails or refuses to issue a\nwaiver to a contractor as requested within twenty days after having made\napplication therefor pursuant to subdivision six of this section or if\nthe contracting agency denies such application, in whole or in part, the\ncontractor may file a complaint with the director pursuant to section\nthree hundred sixteen of this article setting forth the facts and\ncircumstances giving rise to the contractor's complaint together with a\ndemand for relief. The contractor shall serve a copy of such complaint\nupon the contracting agency by personal service or by certified mail,\nreturn receipt requested. The contracting agency shall be afforded an\nopportunity to respond to such complaint in writing.\n 9. If, after the review of a contractor's minority and women-owned\nbusiness utilization plan or review of a periodic compliance report and\nafter such contractor has been afforded an opportunity to respond to a\nnotice of deficiency issued by the contracting agency in connection\ntherewith, it appears that a contractor is failing or refusing to comply\nwith the minority and women-owned business participation requirements as\nset forth in the state contract and where no waiver from such\nrequirements has been granted, the contracting agency may file a written\ncomplaint with the director pursuant to section three hundred sixteen of\nthis article setting forth the facts and circumstances giving rise to\nthe contracting agency's complaint together with a demand for relief.\nThe contracting agency shall serve a copy of such complaint upon the\ncontractor by personal service or by certified mail, return receipt\nrequested. The contractor shall be afforded an opportunity to respond to\nsuch complaint in writing.\n * NB Repealed July 1, 2028\n