N.Y. Comp. Codes R. & Regs. tit. 21 § 9605.9

Current through Register Vol. 46, No. 45, November 2, 2024

Section 9605.9 - Implementation - LBE/GLBE subcontractor participation

(a) Bidding.

(1) The authority will apply the following procedures when bidding a construction contract which contains items suitable for subcontracting:

(i) include in the information to bidders and in all construction contracts, the provisions for LBE and GLBE subcontracting;

(ii) prepare a bid notice to be published in the City Record and sent to appropriate trade publications and trade associations indicating that the project contains items suitable for subcontracting to LBEs/GLBEs;

(iii) supply a list of LBEs/GLBEs certified by the authority with all bid documents;

(iv) post, at the location where bid materials are available, all bid notices;

(v) upon request, provide to LBEs/GLBEs a list of prime contractors who pick up bid documents for projects containing items suitable for subcontracting; and

(vi) emphasize the LBE/GLBE program in its agenda for pre-bid and pre-construction conference.

(b) Pre-award requirements.

(1) The authority shall seek to ensure that if any portion of a construction contract is subcontracted, that not less than 10 percent of the total dollar amount of the contract or the total subcontracted dollars (whichever is less) are awarded to LBEs/GLBEs through implementation of monitoring activities outlined below:

(i) Within five business days following notification of intent to award, the selected contractor shall submit the dollar amount and type of work to be subcontracted and a LBE participation schedule to the authority. If the schedule does not identify sufficient LBE subcontractors to meet the requirements, the apparent low bidder shall also submit documentation of its good faith efforts to meet such requirements.

(a) The LBE participation schedule shall include:

(1) the name and address of each LBE that will be awarded a subcontract;

(2) the percentage dollar amount and type of work to be subcontracted to each LBE; and

(3) the dates when the LBE subcontract work will commence and end.

(b) The following documents shall be attached to the LBE participation schedule:

(1) verification letter from each LBE subcontractor listed stating the terms of its formal agreement with the contractor; and

(2) certification documents of any proposed LBE subcontractor which is not on the authority's certified list.

(c) Documentation of good faith efforts to achieve the required LBE percentage shall include:

(1) written notification by certified mail to authority certified LBEs soliciting bids for specific work items specifying estimated value;

(2) written notification to NYC certified LBEs soliciting bids for specific work items specifying estimated value;

(3) written notification to minority and women contractor associations soliciting LBE subcontractors;

(4) demonstration of efforts made to select portions of the work for performance by LBE firms in order to increase the likelihood of achieving the stated goals;

(5) documented efforts to negotiate with LBE firms for specific subcontracts including at a minimum:

(i) the names, addresses and telephone numbers of LBE firms contacted;

(ii) copies of information provided to LBE firms regarding the plan and specification for portions of the work to be performed;

(iii) documentation showing that no reasonable price could be obtained from LBE firms; and

(iv) a statement of why agreements with LBE firms were not reached;

(6) a statement of the reason for rejecting any LBE firm which the contractor deemed to be unqualified.

(ii) Failure of the apparent low bidder to provide the information required within the allotted time shall render the bid nonresponsive and therefore, the contract may not be awarded to the bidder.

(iii) The authority shall incorporate into all information provided to bidders on construction contracts subject to this Part the provisions contained in items (i)(c) (5)(i) and (ii) of this paragraph.

(c) Post award requirements/contract language.

(1) This contract is subject to the requirements of Administrative Code, section 6-108.1; article 8, title 6, section 1743.2 of the Public Authorities Law as amended and the regulations promulgated thereunder. No contract shall be executed unless and until these requirements have been complied with.

(2) Unless specifically waived by the authority, if any portion of the contract is subcontracted, not less than 10 percent of the total dollar amount of the contract shall be awarded to locally based enterprises or graduate locally based enterprises; except that where less than 10 percent of the total dollar amount of the contract is subcontracted, such less percentage shall be so awarded.

(3) If the contractor has not met its required LBE/GLBE percentage prior to award, the contractor shall submit documentation of its good faith efforts as prescribed in clause (b)(1)(i)(c) of this section for each proposed subcontract prior to the authority's approval of award of such proposed subcontract until the contractor meets the required percentage.

(4) If the contractor indicates prior to award that no work will be subcontracted, then no work shall be subcontracted without the prior approval of the authority, which shall be granted only if the contractor makes a good faith effort to obtain LBE/GLBE subcontractors at least four weeks before the work is to be performed.

(5) Prime contractors may not require performance and payment bonds from LBE or GLBE subcontractors.

(6) LBE/GLBE participation shall be determined and applied toward meeting the 10 percent requirement on the basis of work actually performed in the following manner:

(i) The total dollar value of a subcontract let to an LBE/GLBE subcontractor shall be applied toward the contractor's LBE requirement. However, work further subcontracted by an LBE/GLBE subcontractor to a non-LBE/GLBE subcontractor shall not be so applied.

(7) The contractor shall make prompt payment to all LBE subcontractors. Within 15 calendar days of receipt of any payment from the authority, the contractor shall pay each LBE subcontractor the portion of the payment from the authority representing the value of the work performed by the LBE subcontractor less an amount equivalent to the appropriate pro rata share of the percentage of the retention withheld by the authority from the contractor.

(8) The contractor is strictly prohibited from withholding payment from an LBE subcontractor due to contract disputes relating to work performed under another unrelated subcontract.

(9) The contractor is strictly prohibited from requesting or requiring an LBE subcontractor to perform work on a change order not approved by the authority and not covered under the LBE's original subcontract.

(10) The contractor must notify the authority prior to withholding payment from an LBE subcontractor for work which the authority has paid the contractor.

(11) The contractor shall submit to the authority with each requisition for payment, a report of payments to LBE/GLBE subcontractors.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 9605.9