N.Y. Comp. Codes R. & Regs. tit. 9 § 435.6

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

Section 435.6 - Minority and women-owned business enterprise program

(a) The office shall establish procedures and guidelines to ensure that grant recipients and their contractors and subcontractors undertake programs to utilize minority and women-owned business enterprises on projects undertaken pursuant to this Subchapter. This section shall be applicable to grants awarded prior to June 1, 1989. For grants awarded after June 1, 1989, the provisions of article 15-A of the Executive Law, Participation by Minority Group Members and Women with Respect to State Contracts, shall apply.

(b) Each grant recipient shall be responsible for requiring each contractor to submit a minority and women-owned business enterprise utilization plan prior to the award of a contract.

(c) Goals.

(1) The goals for the participation of minority and women-owned business enterprises on projects under this Subchapter shall be as follows:

(i) for minority-owned business enterprises, a goal of at least 12 percent of the total dollar value of contracts awarded; and

(ii) for women-owned business enterprises, a goal of at least five percent of the total dollar value of contracts awarded.

(2) These goals may be adjusted on the basis of the following criteria:

(i) relevant demographic data;

(ii) availability of minority and women-owned business enterprises selling services or goods needed for contract performance;

(iii) possibilities for solicitation of minority and women-owned business enterprises;

(iv) past performance in regard to minority and women-owned business programs;

(v) the office's ability to identify minority and women-owned businesses which can be used by contractors to comply with the goal requirements of the office; and

(vi) other relevant facts or circumstances.

(d) The grant recipient shall include and require that all contracts pursuant to this Subchapter and all documents soliciting bids or proposals therefor shall contain and make reference to the following provisions:

(1) that the contractor comply with the recordkeeping, reporting and notice requirements of this section; and

(2) that sanctions will be imposed for a contractor's failure to comply with the requirements of this section.

(e) Every grant recipient and its contractors and subcontractors shall be required to make good faith efforts to meet goal requirements. Good faith efforts may include:

(1) advertisement in appropriate general circulation, trade and minority and women-oriented media;

(2) timely notice of contract opportunities;

(3) the development and maintenance of lists for purposes of notifying minorities and women of contracting opportunities; and

(4) maintenance of records required by the office for documenting the contractor's actions, which identify minority and women contract opportunities.

(f) Sanctions may be imposed by the office for failure to meet goal requirements unless the office determines that goal requirements should be waived because a grant recipient has made a good faith effort to comply with such requirements. Sanctions may include the following:

(1) reduction of the agreement price;

(2) suspension or termination of the agreement;

(3) retention of payments until compliance is achieved; and

(4) other penalties of which a grant recipient has notice in writing prior to or during the performance of an agreement.

(g) Any person having a question about any determination made pursuant to this Part may contact the Commissioner of Parks, Recreation and Historic Preservation, Office of Parks, Recreation and Historic Preservation, 625 Broadway, Albany, NY 12233, (518) 474-0443.

(h) In the implementation of this section, the office shall consider compliance by any contractor with the requirements of any Federal, State or local law concerning minority and women-owned business enterprises, which may effectuate the requirements of this section. If the office determines that by virtue of the imposition of the requirements of any such law, in respect to capital project contracts, the provisions thereof duplicate or conflict with such law, the office will waive the applicability of this section to the extent of such duplication or conflict.

(i) In order to implement the requirements and objectives of this section, the office shall establish procedures to monitor all contractors' compliance with provisions of this section, provide assistance in obtaining competing certified minority and women-owned business enterprises to perform contracts proposed to be awarded, and take other appropriate measures to improve the access of minority and women-owned business enterprises to these contracts.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 435.6

Amended New York State Register March 8, 2023/Volume XLV, Issue 10, eff. 3/8/2023