Current through Register Vol. 46, No. 12, March 20, 2024
(a) A State agency
shall not grant any automatic waivers of goal requirements on a State contract
but may grant a partial or total waiver of goal requirements established on a
State contract only upon the submission of a waiver form by a contractor,
documenting good faith efforts, as defined in Section
142.8,
by the contractor to meet the goal requirements of the State contract, and in
consideration of the following factors:
(1)
the number and types of certified minority or women-owned business enterprises
available to perform on any subcontractable scopes of the contract:
(2) the total dollar value of the State
contract;
(3) the contract scope of
work to be performed;
(4) the
project size;
(5) the project
term;
(6) the availability of other
business enterprises located in the region qualified to do the work to be
performed;
(7) the ability of
certified minority and women-owned business enterprises located outside the
region to perform the State contract;
(8) Whether certified minority or women-owned
businesses which have been solicited by the contractor exhibited interest in
submitting proposals for a particular project by attending, or having attended,
a pre-bid conference, if any, scheduled by the State agency awarding the State
contract with certified minority and women-owned business
enterprises;
(9) Whether the
contractor provided timely written notification of subcontracting opportunities
on the State contract to appropriate certified businesses that appear in the
directory of certified businesses prepared pursuant to paragraph (f) of
subdivision three of section
311 of the Executive Law; and
(10) the extent to which contractor's own
actions, including but not limited to, any failure by contractor to discharge
the contractor's duties pursuant to this Part or article 15-A of the Executive
Law, contributed to contractor's inability to meet the maximum feasible portion
of the contract goals.
(b) Requests for a partial or total waiver of
goal requirements established on a State contract made prior to the award of
the contract may be made simultaneously with the submission of the utilization
plan for that State contract. If a contractor is found non-responsive or
non-responsible by a State agency, the request for a waiver shall be deemed
moot.
(c) Requests for a partial or
total waiver made subsequent to award of a State contract may be made at any
time during the term of the State contract but prior to the submission of a
request for final payment on that contract.
(d) Forms for requests of a partial or total
waiver of goal requirements established on a State contract, shall include a
request for the following information, where applicable:
(1) the names of general circulation, media,
trade association and minority and women-oriented publications in which bids
were solicited for purposes of complying with goal requirements established for
certified minority and women-owned business enterprise participation;
(2) the dates for which bid solicitations for
certified minority and women-owned business participation were published in any
of the publications named pursuant to paragraph (1) of this subdivision and the
text of the bid solicitation;
(3) a
list of certified minority and women-owned business enterprises appearing in
the directory which were solicited in writing to provide bids for purposes of
complying with a State agency's goal requirements for certified minority and
women-owned business enterprise participation;
(4) proof of dates on which such
solicitations were made in writing and copies of solicitations made, or a
sample copy of the solicitation if an identical solicitation was made of all
certified minority and women-owned business enterprises;
(5) copies of responses made by certified
minority and women-owned business enterprises to solicitations made by the
contractor;
(6) a description of
any contract documents, plans or specifications made available to certified
minority and women-owned business enterprises for purposes of soliciting their
bids, and the dates and manner in which these documents were made
available;
(7) documentation of any
negotiations between the contractor and/or certified minority and women-owned
business enterprises undertaken for purposes of complying with goal
requirements established for certified minority and women-owned business
enterprise participation;
(8) any
other information determined relevant by the State agency or the contractor;
and
(9) a statement setting forth
the contractor's basis for requesting a partial or total waiver.
(e) Upon the issuance of all
waivers of compliance, the contracting agency shall publish on its website on a
monthly basis, if practicable, but no less than on a quarterly basis:
(1) Information identifying the contract,
including the value of the contract;
(2) The name of the contractor receiving the
waiver;
(3) The date of the waiver;
and
(4) The specific contract
provisions to which the waiver applies.
(f) The division may require State agencies
to submit requests for waivers for compliance review prior to final approval.
The director of the division shall not participate in such compliance
review.