Legislation

Search OpenLegislation Statutes
This entry was published on 2020-01-17
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 822
Workforce participation goals
Executive (EXC) CHAPTER 18, ARTICLE 28
* § 822. Workforce participation goals. 1. The director, in
consultation with the department, shall develop aspirational goals for
the utilization of minority group members and women in each construction
trade, profession, and occupation.

(a) Aspirational goals for the utilization of minority group members
and women must set forth the expected participation of minority group
members and women in each construction trade, profession, and occupation
and shall be expressed as a percentage of the total hours of work to be
performed by each trade, profession, and occupation based on the
availability of minority group members and women within each
construction trade, profession, and occupation.

(i) The aspirational goals shall set forth separate levels of expected
participation by men and women for each minority group, and for
Caucasian women, in each construction trade, profession, and occupation.

(ii) The director may establish aspirational goals for the expected
participation of minority group members and women for municipalities
where the director deems feasible and appropriate.

(iii) The director shall, in establishing the aspirational goals,
consider the findings of the most recent disparity study and any
relevant data published by the United States Census Bureau.

(b) The director shall update the aspirational goals on a periodic
basis, no less than biannually.

2. State agencies shall, for each invitation for bids, request for
proposals, or other solicitation that will result in the award of a
state contract, set forth the expected degree of workforce participation
by minority group members and women.

(a) Each workforce participation goal established by a state agency
shall set forth the expected level of participation by minority group
members and women in the performance of each trade, profession, and
occupation required in the performance of the contract.

(b) Goals for the participation of minority group members and women
shall set forth separate goals for each of the following groups in each
construction trade, profession, and occupation:

(i) Black men;

(ii) Black women;

(iii) Hispanic men;

(iv) Hispanic women;

(v) Native American men;

(vi) Native American women;

(vii) Asian men;

(viii) Asian women;

(ix) Caucasian women.

(c) In establishing workforce participation goals, state agencies
shall consider factors including, but not limited to:

(i) the findings of the most recent disparity study;

(ii) any relevant data published by the United States Census Bureau;
and

(iii) if applicable, any aspirational goal established by the
division.

(d) In any case, where a state agency establishes a workforce
participation goal on an invitation for bids, request for proposals, or
other solicitation that will result in the award of a state contract for
construction that deviates from the aspirational goal for work or
service in the county or municipality in which the work or service will
be performed, the state agency shall document numerical evidence
demonstrating that the application of the aspirational goal would not be
practical, feasible, or appropriate.

3. Every contractor responding to an invitation for bids, request for
proposals, or other solicitation that will result in the award of a
state contract subject to workforce participation goals pursuant to this
section shall agree to make a good faith effort to achieve such
workforce participation goal or request a waiver of such goal.

(a) A contractor that certifies that it will make a good faith effort
to achieve a workforce participation goal shall provide with its
response to the applicable invitation for bids, request for proposals,
or other solicitation:

(i) A certification stating that the contractor will make a good faith
effort to achieve the applicable workforce participation goal and will
contractually require any subcontractors to the contractor to make a
good faith effort to achieve the applicable workforce participation goal
in any subcontracted work;

(ii) The level of anticipated participation by minority group members
and women as employees to the contractor, or, if the state agency has
specifically indicated that such documentation is not required as part
of the response to the invitation for bids, request for proposals, or
other solicitation, a date certain for the submission of such
documentation after the award of the state contract;

(iii) A list of all subcontractors anticipated to perform work on the
state contract and the level of anticipated participation by minority
group members and women as employees to each subcontractor, or, if the
state agency has specifically indicated that such documentation is not
required as part of the response to the invitation for bids, request for
proposals, or other solicitation, a date certain for the submission of
such documentation after the award of the state contract; and

(iv) Such other information as the contracting state agency shall
require.

(b) A contractor that requests a waiver of a workforce participation
goal shall provide with its response to the applicable invitation for
bids, request for proposals, or other solicitation:

(i) Numerical evidence setting forth why the achievement of the
workforce participation goal is not practical, feasible, or appropriate
in light of the construction trades, professions, and occupations
required to perform the work of the state contract;

(ii) Documentation of the contractor's efforts, and any efforts by
subcontractors to the contractor, to promote the inclusion of minority
group members and women in construction trades, professions, and
occupations required in the performance of the state contract;

(iii) The level of anticipated participation by minority group members
and women in each of the construction trades, professions, and
occupations required in the performance of the work of the state
contract;

(iv) A list of all subcontractors anticipated to perform work on the
state contract and the level of anticipated participation by minority
group members and women as employees to each subcontractor; and

(v) Any other relevant information evidencing that the contractor's
achievement of the workforce participation goal would not be practical,
feasible, or appropriate.

4. A state agency may not award a state contract to a contractor
unless the contractor has (i) certified that it will make a good faith
effort to achieve the applicable workforce participation goal and
provided documentation of the workforce anticipated to perform the work
of the state contract or (ii) submitted a waiver request which the state
agency deems to reflect the maximum feasible participation of minority
group members and women in each of the construction trades, professions,
and occupations required in performance of the work of the state
contract.

(a) In the event that a contractor submits a certification or waiver
request that is accepted by the state agency, the state agency shall
establish in the state contract the expected level of participation by
minority group members and women in each of the construction trades,
professions, and occupations required in performance of the work of the
state contract, require that the contractor make good faith efforts to
achieve such workforce participation goals, require that the contractor
require any subcontractors to make a good faith effort to achieve the
applicable workforce participation goal in any subcontracted work.

(b) In the event that a contractor fails to submit a certification,
waiver request, or any other information required by the state agency,
or the state agency determines that a contractor's waiver request does
not demonstrate that the applicable workforce participation goal is
impractical, unfeasible, or inappropriate, the state agency shall notify
the contractor of the deficiency in writing and provide the contractor
five business days to remedy the noticed deficiency. A state agency may
reject any bid or proposal of a contractor that fails to timely respond
to a notice of deficiency or to provide documentation remedying the
deficiency to the satisfaction of the state agency.

(c) Where failure to remedy any notified deficiency in the workforce
utilization plan is a ground for disqualification, that issue and all
other grounds for disqualification shall be stated in writing by the
contracting state agency. The director shall establish via regulation,
rules for state contracting agencies aimed at the measurement, reduction
and elimination of erroneous business disqualifications including a
process affording a contractor notice and an opportunity to be heard
related to such disqualifications.

* NB Repealed December 31, 2024