N.Y. Exec. Law § 313

* § 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 two thousand ten disparity study,\nconsistent with the purposes of this article, to attempt to achieve the\nfollowing results with regard to total annual statewide procurement:\n (a) construction industry for certified minority-owned business\nenterprises: fourteen and thirty-four hundredths percent;\n (b) construction industry for certified women-owned business\nenterprises: eight and forty-one hundredths percent;\n (c) construction related professional services industry for certified\nminority-owned business enterprises: thirteen and twenty-one hundredths\npercent;\n (d) construction related professional services industry for certified\nwomen-owned business enterprises: eleven and thirty-two hundredths\npercent;\n (e) non-construction related services industry for certified\nminority-owned business enterprises: nineteen and sixty hundredths\npercent;\n (f) non-construction related services industry for certified\nwomen-owned business enterprises: seventeen and forty-four hundredths\npercent;\n (g) commodities industry for certified minority-owned business\nenterprises: sixteen and eleven hundredths percent;\n (h) commodities industry for certified women-owned business\nenterprises: ten and ninety-three hundredths percent;\n (i) overall agency total dollar value of procurement for certified\nminority-owned business enterprises: sixteen and fifty-three hundredths\npercent;\n (j) overall agency total dollar value of procurement for certified\nwomen-owned business enterprises: twelve and thirty-nine hundredths\npercent; and\n (k) overall agency total dollar value of procurement for certified\nminority, women-owned business enterprises: twenty-eight and ninety-two\nhundredths percent.\n 1-a. The director shall ensure that each state agency has been\nprovided with a copy of the two thousand ten disparity study.\n 1-b. Each agency shall develop and adopt agency-specific goals based\non the findings of the two thousand ten disparity study.\n 2. The director shall promulgate rules and regulations pursuant to the\ngoals established in subdivision one of this section that provide\nmeasures and procedures to ensure that certified minority and\nwomen-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; and\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;\n (c) require that each agency provide a current list of certified\nminority business enterprises to each prospective contractor;\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) provide for joint ventures, which a bidder may count toward\nmeeting its minority and women-owned business enterprise participation;\n (f) 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 (g) 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 (h) provide for the collection of statistical data by each agency\nconcerning actual minority and women-owned business enterprise\nparticipation; and\n (i) require each agency to consult the most current disparity study\nwhen calculating agency-wide and contract specific participation goals\npursuant to this article.\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 provided to the contracting\nagency by the office; (b) requiring the parties to agree as a condition\nof entering into such contract, to be bound by the provisions of section\nthree hundred sixteen of this article; and (c) requiring the contractor\nto include the provisions set forth in paragraphs (a) and (b) of this\nsubdivision in every subcontract in a manner that the provisions will be\nbinding upon each subcontractor as to work in connection with such\ncontract. Provided, however, that no such provisions shall be binding\nupon contractors or subcontractors in the performance of work or the\nprovision of services that are unrelated, separate or distinct from the\nstate contract as expressed by its terms, and nothing in this section\nshall authorize the director or any contracting agency to impose any\nrequirement on a contractor or subcontractor except with respect to a\nstate 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 availability of certified businesses;\n (b) implement a program that will enable the agency to evaluate each\ncontract to determine the appropriateness of the goal pursuant to\nsubdivision one of this section;\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 meet the maximum\nfeasible portion of the agency's goals adopted pursuant to this article\nand the regulations of the director. Such rules and regulations: shall\nrequire a contractor to submit a utilization plan after bids are opened,\nwhen bids are required, but prior to the award of a state contract;\nshall require the contracting agency to review the utilization plan\nsubmitted by the contractor and to post the utilization plan and any\nwaivers of compliance issued pursuant to subdivision six of this section\non the website of the contracting agency within a reasonable period of\ntime as established by the director; shall require the contracting\nagency to notify the contractor in writing within a period of time\nspecified by the director as to any deficiencies contained in the\ncontractor's utilization plan; shall require remedy thereof within a\nperiod of time specified by the director; shall require the contractor\nto submit periodic compliance reports relating to the operation and\nimplementation of any utilization plan; shall not allow any automatic\nwaivers but shall allow a contractor to apply for a partial or total\nwaiver of the minority and women-owned business enterprise participation\nrequirements pursuant to subdivisions six and seven of this section;\nshall allow a contractor to file a complaint with the director pursuant\nto subdivision eight of this section in the event a contracting agency\nhas failed or refused to issue a waiver of the minority and women-owned\nbusiness enterprise participation requirements or has denied such\nrequest for a waiver; and shall allow a contracting agency to file a\ncomplaint with the director pursuant to subdivision nine of this section\nin the event a contractor is failing or has failed to comply with the\nminority and women-owned business enterprise participation requirements\nset forth in the state contract 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) 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. 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\nlocated in the region in which the state contract is to be performed,\nthe total dollar value of the state contract, the scope of work to be\nperformed and the project size and term. If, based on such\nconsiderations, the contracting agency determines there is not a\nreasonable availability of contractors on the list of certified business\nto furnish services for the project, it shall issue a waiver of\ncompliance to the contractor. In making such determination, the\ncontracting agency shall first consider the availability of other\nbusiness enterprises located in the region and shall thereafter consider\nthe financial ability of minority and women-owned businesses located\noutside the region in which the contract is to be performed to perform\nthe state contract.\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 a pre-bid conference; 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 there has been written notification 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 Expires December 31, 2016\n