§ 315 — Responsibilities of contracting agencies

* § 315. Responsibilities of contracting agencies. 1. Each contracting\nagency shall be responsible for monitoring state contracts under its\njurisdiction, and recommending matters to the office respecting\nnon-compliance with the provisions of this article so that the office\nmay take such action as is appropriate to ensure compliance with the\nprovisions of this article, the rules and regulations of the director\nissued hereunder and the contractual provisions required pursuant to\nthis article. All contracting agencies shall comply with the rules and\nregulations of the office and are directed to cooperate with the office\nand to furnish to the office such information and assistance as may be\nrequired in the performance of its functions under this article.\n 2. Each contracting agency shall provide to prospective bidders a\ncurrent copy of the directory of certified businesses, and a copy of the\nregulations required pursuant to sections three hundred twelve and three\nhundred thirteen of this article at the time bids or proposals are\nsolicited.\n 2-a. To the extent practicable, upon completion of the restrictive\nperiod of a procurement, each contracting agency when notifying a\ncontractor of a winning bid award shall also notify any minority or\nwomen-owned business enterprise identified in the contractor's submitted\nutilization plan of such contractor's receipt of the winning bid award.\n 3. Each contracting agency shall report to the director with respect\nto activities undertaken to promote employment of minority group members\nand women and promote and increase participation by certified businesses\nwith respect to state contracts and subcontracts. Such reports shall be\nsubmitted no later than May fifteenth of every year and shall include\nsuch information as is necessary for the director to determine whether\nthe contracting agency and any contractor to the contracting agency have\ncomplied with the purposes of this article, including, without\nlimitation, a summary of all waivers of the requirements of subdivisions\nsix and seven of section three hundred thirteen of this article allowed\nby the contracting agency during the period covered by the report,\nincluding a description of the basis of the waiver request and the\nrationale for granting any such waiver and any instances in which the\ncontract agency has deemed a contractor to have committed a violation\npursuant to section three hundred sixteen of this article and such other\ninformation as the director shall require. Each agency shall also\ninclude in such annual report whether or not it has been required to\nprepare a remedial plan, and, if so, the plan and the extent to which\nthe agency has complied with each element of the plan.\n 4. The division of minority and women's business development shall\nissue an annual report which: (a) summarizes the report submitted by\neach contracting agency pursuant to subdivision three of this section;\n(b) contains such comparative or other information as the director deems\nappropriate, including but not limited to goals compared to actual\nparticipation of minority and women-owned business enterprises in state\ncontracting and a listing of annual participation rates for each agency,\nthe total number of certified minority and women-owned businesses for\nthat reporting year, the number of applications for new certifications\nand recertifications including those approved, the average length of\ntime to determine an approval, the number of applications denied, the\nbasis for any denials and the average length of time to determine a\ndenial, and the total dollar value of state expenditures on certified\nminority and women-owned business contracts and subcontracts for that\nreporting year, each of the foregoing information categorized by the\nminority group that such business relies on for certification pursuant\nto this article and by gender, to evaluate the effectiveness of the\nactivities undertaken by each such contracting agency to promote\nincreased participation by certified minority or women-owned businesses\nwith respect to state contracts and subcontracts; (c) contains a summary\nof all waivers of the requirements of subdivisions six and seven of\nsection three hundred thirteen of this article allowed by each\ncontracting agency during the period covered by the report, including a\ndescription of the basis of the waiver request and the contracting\nagency's rationale for granting any such waiver; (d) describes any\nefforts to create a database or other information storage and retrieval\nsystem containing information relevant to contracting with minority and\nwomen-owned business enterprises; (e) contains a summary of (i) all\ndeterminations of violations of this article by a contractor or a\ncontracting agency made during the period covered by the annual report\npursuant to section three hundred sixteen-a of this article and (ii) the\npenalties or sanctions, if any, assessed in connection with such\ndeterminations and the rationale for such penalties or sanctions; and\n(f) contains information on each contract identifying the following: (i)\nwhether it is a contract for goods or services; (ii) whether the\ncontract was awarded to a certified minority-owned business enterprise\nor a certified women-owned business enterprise and identifies which\nminority group member the minority-owned business enterprise relies on\nfor certification pursuant to this article; (iii) the name and business\naddress of prime contractors and subcontractors providing services under\nsuch contract; and (iv) the dollar value of such contract. Copies of the\nannual report shall be provided to the commissioner, the governor, the\ncomptroller, the temporary president of the senate, the speaker of the\nassembly, the minority leader of the senate, the minority leader of the\nassembly and shall also be made widely available to the public via,\namong other things, publication on a website maintained by the division\nof minority and women's business development.\n 5. Each agency shall include in its annual report to the governor and\nlegislature pursuant to section one hundred sixty-four of this chapter:\n(a) its annual goals for contracts with minority-owned and women-owned\nbusiness enterprises; (b) the number of actual contracts issued to\nminority-owned and women-owned business enterprises; (c) a summary of\nall waivers of the requirements of subdivisions six and seven of section\nthree hundred thirteen of this article allowed by the reporting agency\nduring the preceding year, including a description of the basis of the\nwaiver request and the rationale for granting such waiver; (d) whether\nor not it has been required to prepare a remedial plan, and, if so, the\nplan and the extent to which the agency has complied with each element\nof the plan; (e) which expenditures are exempt from participation goals\nand the rationale for such exemption; and (f) every four years,\nbeginning September fifteenth, two thousand twenty, each agency shall\ninclude in such annual report its four-year growth plan pursuant to\nsection three hundred eleven of this article.\n 6. Each contracting agency that substantially fails to make a good\nfaith effort as defined by regulation of the director, to achieve the\nmaximum feasible participation of minority and women-owned business\nenterprises in such agency's contracting shall be required to submit to\nthe director a remedial action plan to remedy such failure.\n 7. If it is determined by the director that any agency has failed to\nact in good faith to implement the remedial action plan, pursuant to\nsubdivision six of this section within one year, the director shall\nprovide written notice of such a finding, which shall be publicly\navailable, and direct implementation of remedial actions to:\n (a) assure that sufficient and effective solicitation efforts to women\nand minority-owned business enterprises are being made by said agency;\n (b) divide contract requirements, when economically feasible, into\nquantities that will expand the participation of women and\nminority-owned business enterprises;\n (c) eliminate extended experience or capitalization requirements, when\nprogrammatically and economically feasible, that will expand\nparticipation by women and minority-owned business enterprises;\n (d) identify specific proposed contracts as particularly attractive or\nappropriate for participation by women and minority-owned business\nenterprises with such identification to result from and be coupled with\nthe efforts of paragraphs (a), (b), and (c) of this subdivision; and\n (e) upon a finding by the director that an agency has failed to take\naffirmative measures to implement the remedial plan and to follow any of\nthe remedial actions set forth by the director, and in the absence of\nany objective progress towards the agency's goals, require some or all\nof the agency's procurement, for a specified period of time, be placed\nunder the direction and control of another agency or agencies.\n * NB Repealed July 1, 2028\n