New York Codes, Rules and Regulations
Title 5 - DEPARTMENT OF ECONOMIC DEVELOPMENT
Chapter XIV - Division of Minority and Women's Business Development
Part 142 - Requirements And Procedures Regarding Participation By Certified Minority- And Women-owned Business Enterprises On State Contracts
Section 142.8 - Contractor's efforts to utilize certified business enterprises
Universal Citation: 5 NY Comp Codes Rules and Regs ยง 142.8
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Contractors must document their good faith efforts toward utilizing certified minority and women-owned business enterprises, including but not limited to, those identified within a utilization plan. Such documented efforts, shall include, at a minimum:
(1) Copies of its solicitations
of certified minority and women-owned business enterprises and any responses
thereto;
(2) If responses to the
contractor's solicitations were received, but a certified minority or
woman-owned business enterprise was not selected, the specific reasons that
such enterprise was not selected;
(3) Copies of any advertisements for
participation by certified minority and women-owned business enterprises timely
published in appropriate general circulation, trade and minority or
women-oriented publications, together with the listing(s) and date(s) of the
publication of such advertisements;
(4) The dates of attendance at any pre-bid,
pre-award, or other meetings, if any, scheduled by the State agency awarding
the State contract, with certified minority and women-owned business
enterprises which the State agency determined were capable of performing the
State contract scope of work for the purpose of fulfilling the contract
participation goals;
(5)
Information describing the specific steps undertaken to reasonably structure
the contract scope of work for the purpose of subcontracting with, or obtaining
supplies from, certified minority and women-owned business
enterprises.
(b) In addition to the information provided by the contractor in subdivision (a) above, the State agency may also consider the following to determine whether the contractor has demonstrated good faith efforts:
(1) where applicable, whether the contractor
submitted an amended utilization plan consistent with the subcontract or
supplier opportunities in the contract;
(2) the number of certified minority and
women-owned business enterprises in the region listed in the directory of
certified businesses that could, in the judgment of the State agency, perform
work required by the State contract scope of work;
(3) the actions taken by the contractor to
contact and assess the ability of certified minority and women-owned business
enterprises located outside of the region in which the State contract scope of
work is to be performed to participate on the State contract;
(4) whether the contractor provided relevant
plans, specifications or terms and conditions to certified minority and
women-owned business enterprises sufficiently in advance to enable them to
prepare an informed response to a contractor request for participation as a
subcontractor or supplier;
(5) the
terms and conditions of any subcontract or provision of suppliers offered to
certified minority or women-owned business enterprises and a comparison of such
terms and conditions with those offered in the ordinary course of the
contractor's business and to other subcontractors or suppliers of the
contractor;
(6) whether the
contractor offered to make up any inability to comply with the certified
minority and women-owned business enterprises goals in the subject State
contract in other State contracts being performed or awarded to the
contractor;
(7) the extent to which
contractor's own actions, including but not limited to, any failure by
contractor to discharge 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;
(8) whether the contractor knowingly utilized
one or more certified minority and/or women-owned business enterprises, in the
performance of the subject State contract, that contractor knew or reasonably
should have known could not perform a commercially useful function;
(9) whether the contractor submitted
compliance reports pursuant to section
142.11
of this Part, which identified certified minority and/or women-owned business
enterprises that contractor knew or reasonably should have known did not
perform a commercially useful function on a State contract on which goals were
assigned pursuant to section
142.2
of this Part; and
(10) any other
information that is relevant or appropriate to determining whether the
contractor has demonstrated a good faith effort.
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