N.Y. Comp. Codes R. & Regs. tit. 9 § 252.1

Current through Register Vol. 46, No. 25, June 18, 2024

Section 252.1 - Definitions

(a)Administering agency shall mean the Office of General Services Division of Service-Disabled Veterans' Business Development (DSDVBD).

(b)Applicant shall mean a business enterprise which has applied for certification as a bona fide service-disabled veteran-owned business enterprise.

(c)Business enterprise shall mean any entity, including a sole proprietor- ship, partnership, limited liability partnership, limited liability company or corporation, which is authorized to and engages in lawful business transactions in accordance with New York law.

(d)Certified enterprise or certified business shall mean a business enterprise which has been approved by the division of service-disabled veteran business development of service-disabled veteran-owned business enterprise status subsequent to verification that the business enterprise is owned, operated, and controlled by service-disabled veterans, and is a small business pursuant to subdivision (v) of this section.

(e)Certified service-disabled veteran-owned business enterprise shall mean a business enterprise, including a sole proprietorship, partnership, limited liability company or corporation that is:

(1) at least 51 percent owned by one or more service-disabled veterans;

(2) an enterprise in which such service-disabled veteran ownership is real, substantial, and continuing;

(3) an enterprise in which such service-disabled veteran ownership has and exercises the authority to control independently the day-to-day business decisions of the enterprise;

(4) an enterprise authorized to do business in this State and is independently-owned and operated;

(5) an enterprise that is a small business as defined herein; and

(6) certified by the Office of General Services.

(f)Commercially useful function. A service-disabled veteran-owned business enterprise performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, a service-disabled veteran-owned business enterprise must, where applicable and in accordance with any State agency specifications, also be responsible, with respect to materials and supplies used on the contract, for ordering and negotiating price, determining quality and quantity and installing. A service-disabled veteran-owned business enterprise does not perform a commercially useful function if its role adds no substantive value and is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of participation. Factors to be used in assessing whether a service-disabled veteran-owned business is performing a commercially useful function include:

(1) the amount of work subcontracted;

(2) industry practices;

(3) whether the amount the service-disabled veteran-owned business enterprise is to be paid under the contract is commensurate with the work it is to perform;

(4) the credit claimed towards service-disabled veteran-owned business enterprise utilization goals for the performance of the work by the service-disabled veteran-owned business enterprise; and

(5) any other relevant factors.

(g)Commissioner shall mean the Commissioner of General Services.

(h) For purposes of this Part, contract scope of work shall mean the scope of work set forth in the State contract including, but not limited to, construction, construction services, non-construction services, technology, commodities, products or other deliverables required by such contract and specific tasks required by such contract.

(i)Contracting agency shall mean the State agency that is a party to a State contract, as defined in subdivision (w) of this section.

(j)Contracting categories. Major procurement categories for which State agencies shall establish a master goal plan or, where applicable, an update to the master goal plan, as defined in section 252.2(a) and (b), respectively of this Part, to promote the participation of certified service-disabled veteran-owned business enterprises.

(k)Contractor. An individual, a business enterprise, a not-for-profit corporation, or any other party to a State contract, or a bidder in conjunction with the award of a State contract or a proposed party to a State contract.

(l)Control shall mean service-disabled veteran-owned business enterprises and/or their managers have expertise specifically in the business's field of operation in controlling the overall destiny and in controlling the day-to-day operations of the business enterprise.

(m)Day shall mean a State business day unless otherwise specified.

(n)Directory shall mean the directory of certified service-disabled veteran-owned business enterprises for use by State agencies and contractors in complying with the provisions of article 3 of the Veterans' Services Law.

(o)Director shall mean the Director of the Division of Service-Disabled Veterans' Business Development in the Office of General Services.

(p)Discharged LGBT veteran shall mean a veteran who was discharged less than honorably from the uniformed services due to their sexual orientation or gender identity or expression, as those terms are defined in section 292 of the Executive Law, or statements, consensual sexual conduct, or consensual acts relating to sexual orientation, gender identity or expression, or the disclosure of such statements, conduct, or acts, that were prohibited by the branch of the uniformed services at the time of discharge.

(q)Goal shall mean the percentage of aggregate agency expenditures targeted for the participation of certified service-disabled veteran-owned business enterprises sought to be included in State procurement opportunities as prime contractors, subcontractors, suppliers, consultants, joint ventures, teaming agreements, or other similar arrangements.

(r)Not dominant in its field shall mean a business enterprise which does not exercise a controlling influence on an industry in its field of operation.

(s)OGS shall mean the Office of General Services.

(t)Qualifying condition shall mean a diagnosis of post-traumatic stress disorder or traumatic brain injury made by, or an experience of military sexual trauma, as described in 38 USC 1720D, as amended from time to time, disclosed to, an individual licensed to provide health care services at a United States Department of Veterans Affairs facility or an individual licensed to provide health care services within the state of New York.

(u)Service-disabled veteran shall mean:

(1) a veteran as defined herein who received a compensation rating of ten percent or greater from the United States Department of Veterans Affairs or from the United States Department of Defense because of a service-connected disability incurred in the line of duty; and

(2) in the case of the New York guard or the New York naval militia and/or reserves thereof, a veteran who is certified by the New York State Division of Veterans' Affairs, pursuant to the appropriate provisions contained within the Code of Federal Regulations, as having incurred an injury equivalent to a compensation rating of ten percent or greater from the United States Department of Veterans Affairs or from the United States Department of Defense because of a service-connected disability incurred in the line of duty.

(v) Set aside shall mean the reservation in whole or in part of certain procurements by State agencies subject to guidelines to be issued by the commissioner regarding discretionary purchasing, bidding where more than one certified service-disabled veteran-owned business can provide the construction, construction services, non-construction services, technology, commodities, products and other classifications that will facilitate meeting the goal and meeting state agencies' form, function and utility.

(w)Significant business presence shall mean a business authorized to do business in New York State, and that makes a contribution to the New York State economy through the payment of taxes, or the purchase of made in New York State construction, construction services, non-construction services, technology, commodities or products or that has any payroll in New York State.

(x)Small business shall mean a business enterprise which has a significant business presence in the state, not dominant in its field and employs, based on its industry, a certain number of persons as determined by the director, but not to exceed 300, taking into consideration factors which include, but are not limited to, Federal small business administration standards pursuant to 13 CFR part 121 and any amendments thereto.

(y)State agency shall mean:

(1) any State department; or

(2) any division, board, commission or bureau of any State department; or

(3) the State University of New York and the City University of New York, including all their constituent units except community colleges and the independent institutions operating statutory or contract colleges on behalf of the State; or

(4) a board, a majority of whose members are appointed by the governor or who serve by virtue of being State officers or employees as defined in subparagraph (i), (ii) or (iii) of paragraph (i) of subdivision one of section 73 of the Public Officers Law. A State authority, as defined in subdivision one of section two of the Public Authorities Law, and certain public entities listed in subsection b of subdivision 11 of section 310 of the Executive Law except the following only to the extent of State contracts entered into for its own account or for the benefit of a State agency as defined in paragraph (1) or (2) of this subdivision: Dormitory Authority of the State of New York; Facilities Development Corporation; New York State Energy Research and Development Authority; New York State Science and Technology Foundation.

(z)State contract shall mean:

(1) a written agreement or purchase order instrument, providing for a total expenditure in excess of $25,000, whereby a contracting agency is committed to expend or does expend funds in return for labor, services including but not limited to legal, financial and other professional services, commodities, supplies, equipment, materials, technology or any combination of the foregoing, to be performed for, or rendered or furnished to the contracting agency;

(2) a written agreement in excess of $100,000 whereby a contracting agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; and

(3) a written agreement in excess of $100,000 whereby the owner of a State assisted housing project is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon for such project.

(aa)Unconditional ownership shall mean ownership that is not limited by conditions precedent, conditions subsequent, executory agreements, voting trusts, restriction on or assignments of voting rights, or other arrangements of voting rights, or other arrangements causing or potentially causing ownership benefits to go to another.

(ab)Uniformed services shall mean the army, navy, marine corps, air force, space force, coast guard, public health commissioned corps, and the national oceanic and atmospheric administration commissioned officer corps of the United States.

(ac)Veteran mean

(1) a person who served on active duty in the uniformed services of the United States, or in the army national guard, air national guard, or service as a commissioned officer in the public health service, commissioned officer of the national oceanic and atmospheric administration or environmental sciences services administration, cadet at a United States armed forces service academy, and who has been released from such service under other than dishonorable conditions, or

(2) a member of the New York guard who was discharged under other than dishonorable conditions, or

(3) has a qualifying condition, as defined herein, and has received a discharge other than bad conduct or dishonorable from such service, or

(4) is a discharged LGBT veteran, as defined herein, and has received a discharge other than bad conduct or dishonorable from such service.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 252.1

Adopted New York State Register January 28, 2015/Volume XXXVII, Issue 04, eff. 1/28/2015

Amended New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

Amended New York State Register December 6, 2023/Volume XLV, Issue 49, eff. 12/6/2023