§ 314 — Statewide certification program

New York § 314

• Jurisdiction: New York
• Law EXC: Executive
• Art. 15-A: Participation By Minority Group Members and Women With Respect to State Contracts

Text

* § 314. Statewide certification program. 1. The director shall\npromulgate rules and regulations providing for the establishment of a\nstatewide certification program including rules and regulations\ngoverning the approval, denial or revocation of any such certification\nincluding revocations for convictions for fraudulently misrepresenting\nthe status of minority or women-owned business enterprises. Such rules\nshall set forth the maximum personal net worth of a minority group\nmember or woman who may be relied upon to certify a business as a\nminority-owned business enterprise or women-owned business enterprise\nwith a minimum personal net worth threshold of fifteen million dollars,\nand may thereafter 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. Such rules and regulations shall include,\nbut not be limited to, such matters as may be required to ensure that\nthe established procedures thereunder shall at least be in compliance\nwith the code of fair procedure set forth in section seventy-three of\nthe civil rights law, and consistent with the provisions of article\ntwenty-three-A of the correction law.\n 2. For the purposes of this article, the office shall be responsible\nfor verifying businesses as being owned, operated, and controlled by\nminority group members or women and for certifying such verified\nbusinesses. The director shall prepare a directory of certified\nbusinesses for use by contracting agencies and contractors in carrying\nout the provisions of this article. The director shall periodically, but\nno less than annually, update the directory.\n 2-a. (a) The director shall establish a procedure enabling the office\nto accept New York municipal corporation certification verification for\nminority and women-owned business enterprise applicants in lieu of\nrequiring the applicant to complete the state certification process. The\ndirector shall promulgate rules and regulations to set forth criteria\nfor the acceptance of municipal corporation certification. All eligible\nmunicipal corporation certifications shall require business enterprises\nseeking certification to meet the following standards:\n (i) have at least fifty-one percent ownership by a minority or a\nwomen-owned enterprise and be owned by United States citizens or\npermanent resident noncitizens;\n (ii) be an enterprise in which the minority and/or women-ownership\ninterest is real, substantial and continuing;\n (iii) be an enterprise in which the minority and/or women-ownership\nhas and exercises the authority to control independently the day-to-day\nbusiness decisions of the enterprise;\n (iv) be an enterprise authorized to do business in this state;\n (v) be subject to a physical site inspection to verify the fifty-one\npercent ownership requirement;\n (vi) be owned by an individual or individuals, whose ownership,\ncontrol and operation are relied upon for certification, with a personal\nnet worth that does not exceed fifteen million dollars and such other\namount as the director shall set forth in regulations, as adjusted\nannually for inflation according to the consumer price index; and\n (vii) be an enterprise that is a small business pursuant to\nsubdivision twenty of section three hundred ten of this article.\n (b) The director shall work with all municipal corporations that have\na municipal minority and women-owned business enterprise program to\ndevelop standards to accept state certification to meet the municipal\ncorporation minority and women-owned business enterprise certification\nstandards.\n (c) The director shall establish a procedure enabling the division to\naccept federal certification verification for minority and women-owned\nbusiness enterprise applicants, provided said standards comport with\nthose required by the state minority and women-owned business program,\nin lieu of requiring the applicant to complete the state certification\nprocess. The director shall promulgate rules and regulations to set\nforth criteria for the acceptance of federal certification.\n 2-b. The director shall establish a procedure enabling an applicant\nwho was a military service member to prove his or her race or ethnicity,\ndate of birth, place of birth and verification of address for purposes\nof certification of the applicant's business as a minority-owned\nbusiness by submission of the DD Form 214 issued to the applicant by the\nUnited States department of defense upon such applicant's retirement,\nseparation, or discharge from active duty in the armed forces of the\nUnited States, provided the DD Form 214 contains such information, in\nlieu of requiring the applicant to otherwise prove his or her race or\nethnicity. The director shall promulgate rules and regulations to set\nforth criteria for the acceptance of the DD Form 214 by the office.\n 2-c. (a) Each business applying for minority or women-owned business\nenterprise certification pursuant to this section must agree to allow:\n(i) the department of taxation and finance to share its tax information\nwith the division; and (ii) the department of labor to share its tax and\nemployer information with the division.\n (b) Such information provided pursuant to paragraph (a) of this\nsubdivision shall be kept confidential by the division as such\ninformation is kept by the department of taxation and finance or the\ndepartment of labor and use of such information shall be limited to the\ncertification application process, or other uses approved or consented\nto by the business enterprise or applicant.\n 3. Following application for certification pursuant to this section,\nthe director shall provide the applicant with written notice of the\nstatus of the application, including notice of any outstanding\ndeficiencies, within twenty-one days. Within forty-five days of\nsubmission of a final completed application, the director shall provide\nthe applicant with written notice of a determination by the office\napproving or denying such certification and, in the event of a denial a\nstatement setting forth the reasons for such denial. Upon a\ndetermination denying or revoking certification, the business enterprise\nfor which certification has been so denied or revoked shall, upon\nwritten request made within thirty days from receipt of notice of such\ndetermination, be entitled to a hearing before an independent hearing\nofficer designated for such purpose by the director. In the event that a\nrequest for a hearing is not made within such thirty day period, such\ndetermination shall be deemed to be final. The independent hearing\nofficer shall conduct a hearing and upon the conclusion of such hearing,\nissue a written recommendation to the director to affirm, reverse or\nmodify such determination of the director. Such written recommendation\nshall be issued to the parties. The director, within thirty days, by\norder, must accept, reject or modify such recommendation of the hearing\nofficer and set forth in writing the reasons therefor. The director\nshall serve a copy of such order and reasons therefor upon the business\nenterprise by personal service or by certified mail return receipt\nrequested. The order of the director shall be subject to review pursuant\nto article seventy-eight of the civil practice law and rules.\n 4. The director may, after performing an availability analysis and\nupon a finding that industry-specific factors coupled with personal net\nworth or small business eligibility requirements pursuant to\nsubdivisions nineteen and twenty of section three hundred ten of this\narticle, respectively, have led to the significant exclusion of\nbusinesses owned by minority group members or women in that industry,\ngrant provisional MWBE certification status to applicants from that\ndesignated industry, provided, however, that all other eligibility\nrequirements pursuant to subdivision seven or fifteen of section three\nhundred ten of this article, as applicable, are satisfied. Any\nindustry-based determination made under this section by the director\nshall be made widely available to the public and posted on the\ndivision's website.\n ** 5. With the exception of provisional MWBE certification, as\nprovided for in subdivision twenty-three of section three hundred ten of\nthis article, all minority and women-owned business enterprise\ncertifications shall be valid for a period of five years.\n ** NB Effective until July 1, 2026\n ** 5. (a) With the exception of provisional MWBE certification, as\nprovided for in subdivision twenty-three of section three hundred ten of\nthis article, all minority and women-owned business enterprise\ncertifications shall be valid for a period of five years.\n (b) Upon the expiration of a minority and women-owned business\nenterprise certification and the submission of a new application for\nminority and women-owned business enterprise recertification, if there\nis no change in the ownership of the enterprise and no material change\nin the nature or management of the enterprise from the time of approval\nof a previous original minority and women-owned business enterprise\ncertification that was approved within the previous ten years, if such\napplication is compliant with 21 NYCRR 9606 then there shall be a\nrebuttable presumption that the previous minority-owned business\nenterprise satisfies the requirements of paragraphs (a), (b) and (c) of\nsubdivision seven of section three hundred ten of this article and that\nthe previous women-owned business enterprise satisfies the requirements\nof paragraphs (a), (b) and (c) of subdivision fifteen of section three\nhundred ten of this article.\n ** NB Effective July 1, 2026\n * NB Repealed July 1, 2028\n