Legislation
SECTION 315
Responsibilities of contracting agencies
Executive (EXC) CHAPTER 18, ARTICLE 15-A
* § 315. Responsibilities of contracting agencies. 1. Each contracting
agency shall be responsible for monitoring state contracts under its
jurisdiction, and recommending matters to the office respecting
non-compliance with the provisions of this article so that the office
may take such action as is appropriate to ensure compliance with the
provisions of this article, the rules and regulations of the director
issued hereunder and the contractual provisions required pursuant to
this article. All contracting agencies shall comply with the rules and
regulations of the office and are directed to cooperate with the office
and to furnish to the office such information and assistance as may be
required in the performance of its functions under this article.
2. Each contracting agency shall provide to prospective bidders a
current copy of the directory of certified businesses, and a copy of the
regulations required pursuant to sections three hundred twelve and three
hundred thirteen of this article at the time bids or proposals are
solicited.
2-a. To the extent practicable, upon completion of the restrictive
period of a procurement, each contracting agency when notifying a
contractor of a winning bid award shall also notify any minority or
women-owned business enterprise identified in the contractor's submitted
utilization plan of such contractor's receipt of the winning bid award.
3. Each contracting agency shall report to the director with respect
to activities undertaken to promote employment of minority group members
and women and promote and increase participation by certified businesses
with respect to state contracts and subcontracts. Such reports shall be
submitted no later than May fifteenth of every year and shall include
such information as is necessary for the director to determine whether
the contracting agency and any contractor to the contracting agency have
complied with the purposes of this article, including, without
limitation, a summary of all waivers of the requirements of subdivisions
six and seven of section three hundred thirteen of this article allowed
by the contracting agency during the period covered by the report,
including a description of the basis of the waiver request and the
rationale for granting any such waiver and any instances in which the
contract agency has deemed a contractor to have committed a violation
pursuant to section three hundred sixteen of this article and such other
information as the director shall require. Each agency shall also
include in such annual report whether or not it has been required to
prepare a remedial plan, and, if so, the plan and the extent to which
the agency has complied with each element of the plan.
4. The division of minority and women's business development shall
issue an annual report which: (a) summarizes the report submitted by
each contracting agency pursuant to subdivision three of this section;
(b) contains such comparative or other information as the director deems
appropriate, including but not limited to goals compared to actual
participation of minority and women-owned business enterprises in state
contracting and a listing of annual participation rates for each agency,
the total number of certified minority and women-owned businesses for
that reporting year, the number of applications for new certifications
and recertifications including those approved, the average length of
time to determine an approval, the number of applications denied, the
basis for denials and the average length of time to determine a denial,
and the total dollar value of state expenditures on certified minority
and women-owned business contracts and subcontracts for that reporting
year, to evaluate the effectiveness of the activities undertaken by each
such contracting agency to promote increased participation by certified
minority or women-owned businesses with respect to state contracts and
subcontracts; (c) contains a summary of all waivers of the requirements
of subdivisions six and seven of section three hundred thirteen of this
article allowed by each contracting agency during the period covered by
the report, including a description of the basis of the waiver request
and the contracting agency's rationale for granting any such waiver; (d)
describes any efforts to create a database or other information storage
and retrieval system containing information relevant to contracting with
minority and women-owned business enterprises; (e) contains a summary of
(i) all determinations of violations of this article by a contractor or
a contracting agency made during the period covered by the annual report
pursuant to section three hundred sixteen-a of this article and (ii) the
penalties or sanctions, if any, assessed in connection with such
determinations and the rationale for such penalties or sanctions; and
(f) contains information on the annual minority and woman-owned business
enterprise utilization and expenditure categorized by minority-owned
enterprises, women-owned enterprises, and total utilization and
expenditure and organized by the following industry categories: (i)
services including professional services, social services, educational
services, legal services, health services, and business services; (ii)
agriculture; (iii) mining; (iv) construction, including building
construction, heavy construction, and special trade contractors; (v)
manufacturing; (vi) transportation, communication and sanitary services;
(vii) wholesale or retail goods; (viii) construction materials; and (ix)
financial, insurance and real estate services. Copies of the annual
report shall be provided to the commissioner, the governor, the
comptroller, the temporary president of the senate, the speaker of the
assembly, the minority leader of the senate, the minority leader of the
assembly and shall also be made widely available to the public via,
among other things, publication on a website maintained by the division
of minority and women's business development.
5. Each agency shall include in its annual report to the governor and
legislature pursuant to section one hundred sixty-four of this chapter:
(a) its annual goals for contracts with minority-owned and women-owned
business enterprises; (b) the number of actual contracts issued to
minority-owned and women-owned business enterprises; (c) a summary of
all waivers of the requirements of subdivisions six and seven of section
three hundred thirteen of this article allowed by the reporting agency
during the preceding year, including a description of the basis of the
waiver request and the rationale for granting such waiver; (d) whether
or not it has been required to prepare a remedial plan, and, if so, the
plan and the extent to which the agency has complied with each element
of the plan; (e) which expenditures are exempt from participation goals
and the rationale for such exemption; and (f) every four years,
beginning September fifteenth, two thousand twenty, each agency shall
include in such annual report its four-year growth plan pursuant to
section three hundred eleven of this article.
6. Each contracting agency that substantially fails to make a good
faith effort as defined by regulation of the director, to achieve the
maximum feasible participation of minority and women-owned business
enterprises in such agency's contracting shall be required to submit to
the director a remedial action plan to remedy such failure.
7. If it is determined by the director that any agency has failed to
act in good faith to implement the remedial action plan, pursuant to
subdivision six of this section within one year, the director shall
provide written notice of such a finding, which shall be publicly
available, and direct implementation of remedial actions to:
(a) assure that sufficient and effective solicitation efforts to women
and minority-owned business enterprises are being made by said agency;
(b) divide contract requirements, when economically feasible, into
quantities that will expand the participation of women and
minority-owned business enterprises;
(c) eliminate extended experience or capitalization requirements, when
programmatically and economically feasible, that will expand
participation by women and minority-owned business enterprises;
(d) identify specific proposed contracts as particularly attractive or
appropriate for participation by women and minority-owned business
enterprises with such identification to result from and be coupled with
the efforts of paragraphs (a), (b), and (c) of this subdivision; and
(e) upon a finding by the director that an agency has failed to take
affirmative measures to implement the remedial plan and to follow any of
the remedial actions set forth by the director, and in the absence of
any objective progress towards the agency's goals, require some or all
of the agency's procurement, for a specified period of time, be placed
under the direction and control of another agency or agencies.
* NB Repealed July 1, 2028
agency shall be responsible for monitoring state contracts under its
jurisdiction, and recommending matters to the office respecting
non-compliance with the provisions of this article so that the office
may take such action as is appropriate to ensure compliance with the
provisions of this article, the rules and regulations of the director
issued hereunder and the contractual provisions required pursuant to
this article. All contracting agencies shall comply with the rules and
regulations of the office and are directed to cooperate with the office
and to furnish to the office such information and assistance as may be
required in the performance of its functions under this article.
2. Each contracting agency shall provide to prospective bidders a
current copy of the directory of certified businesses, and a copy of the
regulations required pursuant to sections three hundred twelve and three
hundred thirteen of this article at the time bids or proposals are
solicited.
2-a. To the extent practicable, upon completion of the restrictive
period of a procurement, each contracting agency when notifying a
contractor of a winning bid award shall also notify any minority or
women-owned business enterprise identified in the contractor's submitted
utilization plan of such contractor's receipt of the winning bid award.
3. Each contracting agency shall report to the director with respect
to activities undertaken to promote employment of minority group members
and women and promote and increase participation by certified businesses
with respect to state contracts and subcontracts. Such reports shall be
submitted no later than May fifteenth of every year and shall include
such information as is necessary for the director to determine whether
the contracting agency and any contractor to the contracting agency have
complied with the purposes of this article, including, without
limitation, a summary of all waivers of the requirements of subdivisions
six and seven of section three hundred thirteen of this article allowed
by the contracting agency during the period covered by the report,
including a description of the basis of the waiver request and the
rationale for granting any such waiver and any instances in which the
contract agency has deemed a contractor to have committed a violation
pursuant to section three hundred sixteen of this article and such other
information as the director shall require. Each agency shall also
include in such annual report whether or not it has been required to
prepare a remedial plan, and, if so, the plan and the extent to which
the agency has complied with each element of the plan.
4. The division of minority and women's business development shall
issue an annual report which: (a) summarizes the report submitted by
each contracting agency pursuant to subdivision three of this section;
(b) contains such comparative or other information as the director deems
appropriate, including but not limited to goals compared to actual
participation of minority and women-owned business enterprises in state
contracting and a listing of annual participation rates for each agency,
the total number of certified minority and women-owned businesses for
that reporting year, the number of applications for new certifications
and recertifications including those approved, the average length of
time to determine an approval, the number of applications denied, the
basis for denials and the average length of time to determine a denial,
and the total dollar value of state expenditures on certified minority
and women-owned business contracts and subcontracts for that reporting
year, to evaluate the effectiveness of the activities undertaken by each
such contracting agency to promote increased participation by certified
minority or women-owned businesses with respect to state contracts and
subcontracts; (c) contains a summary of all waivers of the requirements
of subdivisions six and seven of section three hundred thirteen of this
article allowed by each contracting agency during the period covered by
the report, including a description of the basis of the waiver request
and the contracting agency's rationale for granting any such waiver; (d)
describes any efforts to create a database or other information storage
and retrieval system containing information relevant to contracting with
minority and women-owned business enterprises; (e) contains a summary of
(i) all determinations of violations of this article by a contractor or
a contracting agency made during the period covered by the annual report
pursuant to section three hundred sixteen-a of this article and (ii) the
penalties or sanctions, if any, assessed in connection with such
determinations and the rationale for such penalties or sanctions; and
(f) contains information on the annual minority and woman-owned business
enterprise utilization and expenditure categorized by minority-owned
enterprises, women-owned enterprises, and total utilization and
expenditure and organized by the following industry categories: (i)
services including professional services, social services, educational
services, legal services, health services, and business services; (ii)
agriculture; (iii) mining; (iv) construction, including building
construction, heavy construction, and special trade contractors; (v)
manufacturing; (vi) transportation, communication and sanitary services;
(vii) wholesale or retail goods; (viii) construction materials; and (ix)
financial, insurance and real estate services. Copies of the annual
report shall be provided to the commissioner, the governor, the
comptroller, the temporary president of the senate, the speaker of the
assembly, the minority leader of the senate, the minority leader of the
assembly and shall also be made widely available to the public via,
among other things, publication on a website maintained by the division
of minority and women's business development.
5. Each agency shall include in its annual report to the governor and
legislature pursuant to section one hundred sixty-four of this chapter:
(a) its annual goals for contracts with minority-owned and women-owned
business enterprises; (b) the number of actual contracts issued to
minority-owned and women-owned business enterprises; (c) a summary of
all waivers of the requirements of subdivisions six and seven of section
three hundred thirteen of this article allowed by the reporting agency
during the preceding year, including a description of the basis of the
waiver request and the rationale for granting such waiver; (d) whether
or not it has been required to prepare a remedial plan, and, if so, the
plan and the extent to which the agency has complied with each element
of the plan; (e) which expenditures are exempt from participation goals
and the rationale for such exemption; and (f) every four years,
beginning September fifteenth, two thousand twenty, each agency shall
include in such annual report its four-year growth plan pursuant to
section three hundred eleven of this article.
6. Each contracting agency that substantially fails to make a good
faith effort as defined by regulation of the director, to achieve the
maximum feasible participation of minority and women-owned business
enterprises in such agency's contracting shall be required to submit to
the director a remedial action plan to remedy such failure.
7. If it is determined by the director that any agency has failed to
act in good faith to implement the remedial action plan, pursuant to
subdivision six of this section within one year, the director shall
provide written notice of such a finding, which shall be publicly
available, and direct implementation of remedial actions to:
(a) assure that sufficient and effective solicitation efforts to women
and minority-owned business enterprises are being made by said agency;
(b) divide contract requirements, when economically feasible, into
quantities that will expand the participation of women and
minority-owned business enterprises;
(c) eliminate extended experience or capitalization requirements, when
programmatically and economically feasible, that will expand
participation by women and minority-owned business enterprises;
(d) identify specific proposed contracts as particularly attractive or
appropriate for participation by women and minority-owned business
enterprises with such identification to result from and be coupled with
the efforts of paragraphs (a), (b), and (c) of this subdivision; and
(e) upon a finding by the director that an agency has failed to take
affirmative measures to implement the remedial plan and to follow any of
the remedial actions set forth by the director, and in the absence of
any objective progress towards the agency's goals, require some or all
of the agency's procurement, for a specified period of time, be placed
under the direction and control of another agency or agencies.
* NB Repealed July 1, 2028