New York Codes, Rules and Regulations
Title 5 - DEPARTMENT OF ECONOMIC DEVELOPMENT
Chapter XIV - Division of Minority and Women's Business Development
Part 140 - Definitions
Section 140.1 - Definitions
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Affirmative Action Program and Equal Employment Opportunity Program. A program involving the implementation of procedures and methods for the identification, recruitment and employment of minority group members and women. Such programs must include equal access to advancement and procedures for investigating claims of discrimination because of race, creed, color, national origin, sex, age, disability or marital status. The overall result to be sought is to expand the employment opportunities of minority group members and women, also referred to as workforce diversity requirements.
(b) Applicant. A business enterprise which has applied for certification as a bona fide minority or woman-owned business enterprise.
(c) Business enterprise. Any entity, including a sole proprietorship, partnership, limited liability partnership, limited liability company or corporation, including not-for-profit corporations, which is authorized to and engages in lawful business transactions in accordance with New York law.
(d) Certified enterprise or certified business. A business enterprise which has been approved by the division of minority or woman-owned business enterprise status subsequent to verification that the business enterprise is owned, operated, and controlled by minority group members or women, and that also meets the financial requirements of subdivision (ff) of this section, and is a small business pursuant to subdivision (hh) of this section.
(e) Chief Diversity Officer. The Governor's principal advisor and representative regarding all matters related to State agency procurement policies concerning minority and women-owned business enterprises and State agency government workforce diversity.
(f) Commercially useful function. A minority or women-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 minority or women-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 minority or women-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 minority or women-owned business is performing a commercially useful function include:
(g) Contract scope of work. For purposes of this Subtitle, contract scope of work shall mean the scope of work set forth in the State contract including, but not limited to, services, products or other deliverables required by such contract and specific tasks required by such contract.
(h) Contracting agency. A party to a State contract, as defined in subdivision (kk) of this section, and in the case of contractual opportunities emanating from financing provided by the New York State Housing Finance Agency, Housing Trust Fund Corporation or Affordable Housing Corporation, as described in subdivision (jj) of this section.
(i) 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 subdivisions (y) and (pp) of this section, respectively, and a four-year growth plan, as defined in subdivision (vv) of this section, to promote the participation of certified minority and women-owned business enterprises.
(j) 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.
(k) Day or business day. A State business day unless otherwise specified.
(l) Director. The director of the New York State Department of Economic Development, Division of Minority and Women's Business Development, who may also be referred to as the executive director.
(m) Directory. The directory of certified enterprises, prepared by the director, for use by State agencies and contractors in complying with the provisions of article 15-A of the Executive Law.
(n) Disparity Study. The latest published study of New York State minority and women owned business enterprise programs commissioned by the State pursuant to section 312-a of the Executive Law.
(o) Diversity practices. The contractor's past, present, and prospective practices and policies with respect to:
(p) Division. The office in charge of minority and women's business development in the department of economic development.
(q) Equal employment opportunities or EEO. A contractor and subcontractor's conscientious and active efforts to afford employment opportunities to minority group members and women without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.
(r) Expenditure. Any payment by a State agency, including but not limited to payments made pursuant to a State contract, purchase order, invoice or non-personal services.
(s) Articles of Procurement. Shall mean a commodity, service, technology, public work, construction, revenue contract, the purchase, sale, or lease of real property or an acquisition or granting of other interest in real property that is the subject of a governmental procurement, as defined in State Finance Law section 139-j.
(t) Goals. The term referring to the percentage of aggregate agency expenditures targeted for the participation of certified minority and/or women-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. Goals may be expressed as agency-specific or contract goals.
(u) Hearing officer. An individual who has been appointed by the director to hear:
(w) Labor force availability data. Data pertaining to the relevant availability and expected levels of participation of minority group members and women on State contracts. The data is developed by the New York State Department of Economic Development, Division of Minority and Women's Business Development, in cooperation with and including but not limited to, the Department of Labor and any other New York State or federal governmental data collecting agency that collects such data, and is based upon the most recent census data provided by the New York State Department of Labor, Bureau of Labor Market Information, aggregated by the Division of Minority and Women's Business Development into federal occupational categories.
(x) Lessee. An individual or a business enterprise, including concession vendors, or any other party to a lease in which the lessor is a State agency as defined in subdivision (ii) of this section.
(y) Master goal plan. An agency-specific annual goal plan, which establishes agency goals and identifies expenditures, strategies, personnel, processes and procedures intended to increase the participation of certified minority and women-owned business enterprises in the subject State agency's procurement.
(z) Mentor-Protege agreement. A contract between a prime contractor, the "Mentor," and a minority or women-owned business enterprise, the "Protege," in which there is a transfer of knowledge, technology, or other resources, which promotes the economic growth of the minority or women-owned business enterprise or fosters the establishment of a long term business relationship between the parties.
(aa) Minority group member. A United States citizen or permanent resident alien who is and can demonstrate membership in one of the following groups:
(bb) Minority-owned business enterprise. A business enterprise that is:
(cc) New York State Department of Economic Development, Division of Minority and Women's Business Development or "the division" The office responsible for implementing the requirements of article 15-A of the Executive Law.
(dd) New York State minority and women-owned business enterprise certification application. The form that the division requires an applicant to submit for purposes of applying for minority or woman-owned business enterprise status.
(ee) Not dominant in its field. A business enterprise which does not exercise a controlling influence on an industry in its field of operation.
(ff) Personal net worth. The aggregate adjusted net value of the assets of an individual remaining after total liabilities are deducted. Personal net worth includes the individual's share of assets held jointly with said individual's spouse and does not include the individual's ownership interest in the certified minority and women-owned business enterprise, the individual's equity in his or her primary residence, ownership interest in a holding company established for the exclusive and sole purpose of leasing machinery, equipment, or vehicles exclusively to the certified minority or women-owned business enterprise, that is majority owned by the minority group member or woman relied upon for certification, and the holding company does not own any other assets of any kind; or up to seven hundred and fifty thousand dollars of the present cash value of any qualified retirement savings plan or individual retirement account held by the individual less any penalties for early withdrawal. Personal net worth shall be calculated on an individual basis and shall not be aggregated in instances where there are multiple individuals relied upon for certification.
(gg) Significant business presence. A business authorized to do business in New York State, and that makes a contribution to the New York State economy through payment of taxes, or the purchase of made in New York State products or materials, or that has any payroll in New York State.
(hh) Small business. A business which has a significant business presence in the State, is independently owned and operated, and is not dominant in its field, but in no event employs more than three hundred people. In determining whether the enterprise meets the definition of a small business as herein provided, consideration shall be given to federal small business administration standards prescribed in 13 CFR Section 121.201, effective as of August 22, 2008. A copy of 13 CFR Section 121.201 can be accessed at the Office of Size Standards, Small Business Administration, 409 3rd Street, SW Washington, DC 20416.
(ii) State agency.
Dormitory Authority of the State of New York;
Facilities Development Corporation;
New York State Energy Research and Development Authority.
(jj) State-assisted housing project. A project which receives a grant or loan for all or part of the total project cost from the New York State Housing Finance Agency, the Affordable Housing Corporation, Housing Trust Fund Corporation or the Division of Housing and Community Renewal;
(kk) State contract. For purposes of this Subtitle, State contract shall mean:
(ll) Subcontract. Any agreement for a total expenditure in excess of twenty-five thousand dollars ($25,000) resulting from a State contract providing for services, including non-staffing expenditures, supplies or materials of any kind between a business enterprise and a prime contractor, in which a portion of the prime contractor's obligation under the State contract is undertaken or assumed by a business enterprise not owned or controlled by the prime contractor.
(mm) Substantially fails. A contracting agency that has failed to make a good faith effort as determined by the division to meet sixty (60) percent of its annual agency-specific goals.
(nn) Supplemental Application. The form that the division requires an applicant to submit for purposes of applying for expeditious certification based on certification as a minority and women-owned business enterprise by entities referenced in sections 144.5 and 144.6.
(oo) Teaming Agreement. A utilization plan arrangement between two or more parties, one of which is a certified minority or women-owned business enterprise, to perform on a specific State contract if awarded to the team. The team itself may be a joint venture, or one of the team members may be designated to act as the prime contractor, and the other member(s) designated to act as subcontractors.
(pp) Update to the master goal plan. An annual update to an existing master goal plan that is submitted by an agency to the division in lieu of a full master goal plan as defined in subdivision (y) of this section.
(qq) Utilization plan. The plan which must be submitted by a contractor to a State agency listing certified minority and/or women-owned business enterprises that the contractor intends to use in the performance of a proposed State contract, or any components of the contract scope of work which the contractor intends certified minority and/or women-owned business enterprises to perform. The plan shall specifically contain a list, including the name, address and telephone number of each certified enterprise with which the contractor intends to subcontract, or otherwise submit in connection with satisfaction of the contract goals.
(rr) Value added. A substantive increase to the performance of a State contract by a certified minority and/or women-owned business enterprise as a joint venture partner, subcontractor, consultant, or supplier, where such a certified minority and/or women-owned business enterprise performs a commercially useful function pursuant to subdivision (f) of this Section.
(ss) Verification. Any act necessary to determine whether a business enterprise seeking to be certified by the division is owned, controlled and operated by principals who are members of a minority group, as defined in subdivision (aa) of this section, or women; and that those principals' personal net worth does not exceed the limitations listed in subdivision (ff) of this section. Such acts may include, but are not limited to, request(s) for documents in addition to the initial application and inspection of the place of business.
(tt) Waiver form. The form provided by a State agency to a contractor as part of a solicitation, relative to a request by the contractor to set aside or modify the participation of certified minority and women-owned business enterprises in the performance of State contracts.
(uu) Women-owned business enterprise.
(vv) Four-year growth plan. The plan which must be submitted by contracting agencies as part of its annual goal plan or as otherwise prescribed by the division, to determine a means of promoting and increasing participation by minority-owned and women-owned business enterprises with respect to State contracts and subcontracts.
(ww) Statewide Advocate. The Statewide Advocate shall mean the person appointed by the commissioner to serve in the capacity of the minority-and women-owned business enterprise Statewide Advocate. The Statewide Advocate shall have all the powers and duties prescribed under Article 15-A.