1. society
2. work
3. contracts

CONTRACTOR REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION
OPPORTUNITIES FOR NEW YORK STATE CERTIFIED MINORITY- AND WOMEN-OWNED
BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP
MEMBERS AND WOMEN
NEW YORK STATE LAW
Pursuant to New York State Executive Law Article 15-A, and 5 NYCRR 140-145 ESD recognizes its
obligation under the law to promote opportunities for maximum feasible participation of certified minorityand women-owned business enterprises and the employment of minority group members and women in
the performance of ESD contracts.
In 2006, the State of New York commissioned a disparity study to evaluate whether minority and womenowned business enterprises had a full and fair opportunity to participate in state contracting. The findings
of the study were published on April 29, 2010, under the title "The State of Minority and Women-Owned
Business Enterprises: Evidence from New York" (“Disparity Study”). The report found evidence of
statistically significant disparities between the level of participation of minority-and women-owned
business enterprises in state procurement contracting versus the number of minority-and women-owned
business enterprises that were ready, willing and able to participate in state procurements. As a result of
these findings, the Disparity Study made recommendations concerning the implementation and operation
of the statewide certified minority- and women-owned business enterprises program.
The
recommendations from the Disparity Study culminated in the enactment and the implementation of New
York State Executive Law Article 15-A, which requires, among other things, that ESD establishes goals
for maximum feasible participation of New York State Certified minority- and women – owned business
enterprises (“MWBE”) and the employment of minority groups members and women in the performance
of New York State contracts.
Business Participation Opportunities for MWBEs
For purposes of this solicitation, ESD hereby establishes an overall goal of 30% for MWBE participation,
15% for Minority-owned Business Enterprises (“MBE”) participation and 15% for Women-owned Business
Enterprises (“WBE”) participation (based on the current availability of qualified MBEs and WBEs). A
contractor (“Contractor”) on the subject contract (“Contract”) must document good faith efforts to provide
meaningful participation by MWBEs as subcontractors or suppliers in the performance of the Contract
and Contractor agrees that ESD may withhold payment pending receipt of the required MWBE
documentation.
The directory of New York State Certified MWBEs can be viewed at:
https://ny.newnycontracts.com/.
For guidance on how ESD will determine a Contractor’s “good faith efforts,” refer to 5 NYCRR §142.8.
In accordance with 5 NYCRR §142.13, Contractor acknowledges that if it is found to have willfully and
intentionally failed to comply with the MWBE participation goals set forth in the Contract, such finding
constitutes a breach of Contract and ESD may withhold payment from the Contractor as liquidated
damages.
Such liquidated damages shall be calculated as an amount equaling the difference between: (1) all sums
identified for payment to MWBEs had the Contractor achieved the contractual MWBE goals; and (2) all
sums actually paid to MWBEs for work performed or materials supplied under the Contract.
By submitting a bid or proposal, a bidder on the Contract (“Bidder”) agrees to demonstrate its good faith
efforts to achieve its goals for the utilization of MWBEs by submitting evidence thereof through the New
York State Contract System, which can be viewed at https://ny.newnycontracts.com/, provided, however,
that a Bidder may arrange to provide such evidence via a non-electronic method by contacting Mr. Vikas
Gera (212) 803-3244. A Bidder shall submit the following documents and information as evidence of
compliance with the foregoing:
A. Bidders are required to submit a MWBE Utilization Plan on Form #OCSD-4 with their bid or
proposal. Any modifications or changes to the MWBE Utilization Plan after the Contract award
and during the term of the Contract must be reported on a revised MWBE Utilization Plan and
submitted to ESD.
B. ESD will review the submitted MWBE Utilization Plan and advise the Bidder of ESD acceptance
or issue a notice of deficiency within 30 days of receipt.
C. If a notice of deficiency is issued, Bidder agrees that it shall respond to the notice of deficiency
within seven (7) business days of receipt by submitting to the ESD Office of Contractor and
Supplier Diversity, 633 Third Ave, NY NY 10017 (212) 803-3244 (work), a written remedy in
response to the notice of deficiency. If the written remedy that is submitted is not timely or is
found by ESD to be inadequate, ESD shall notify the Bidder and direct the Bidder to submit,
within five (5) business days, a request for a partial or total waiver of MWBE participation goals
on Form #OCSD-5. Failure to file the waiver form in a timely manner may be grounds for
disqualification of the bid or proposal.
D. ESD may disqualify a Bidder as being non-responsive under the following circumstances:
a) If a Bidder fails to submit a MWBE Utilization Plan;
b) If a Bidder fails to submit a written remedy to a notice of deficiency;
c) If a Bidder fails to submit a request for waiver; or
d) If ESD determines that the Bidder has failed to document good faith efforts.
Contractors shall attempt to utilize, in good faith, any MBE or WBE identified within its MWBE Utilization
Plan, during the performance of the Contract. Requests for a partial or total waiver of established goal
requirements made subsequent to Contract Award may be made at any time during the term of the
Contract to ESD, but must be made no later than prior to the submission of a request for final payment on
the Contract.
Contractors are required to submit a Contractor’s Quarterly M/WBE Contractor Compliance & Payment
Report on Form #OCSD-6 to the ESD Office of Contractor and Supplier Diversity, 633 Third Ave, NY NY
th
10017 (212) 803-3244 (work), by the 10 day following each end of quarter over the term of the Contract
documenting the progress made toward achievement of the MWBE goals of the Contract.
Equal Employment Opportunity Requirements
By submitting a bid or proposal in response to this solicitation, the Bidder/Contractor agrees with all of the
terms and conditions of Appendix A – Standard Clauses for All New York State Contracts including
Clause 12 - Equal Employment Opportunities for Minorities and Women. The Contractor is required to
ensure that it and any subcontractors awarded a subcontract over $25,000 for the construction,
demolition, replacement, major repair, renovation, planning or design of real property and improvements
thereon (the "Work") except where the Work is for the beneficial use of the Contractor, shall undertake or
continue programs to ensure that minority group members and women are afforded equal
employment opportunities without discrimination because of race, creed, color, national origin, sex, age,
disability or marital status. For these purposes, equal opportunity shall apply in the areas of recruitment,
employment, job assignment, promotion, upgrading, demotion, transfer, layoff, termination, and rates of
pay or other forms of compensation. This requirement does not apply to: (i) work, goods, or services
unrelated to the Contract; or (ii) employment outside New York State.
The Bidder is to submit a Minority and Women-owned Business Enterprises and Equal Employment
Opportunity Policy Statement, Form # 4, to ESD with their bid or proposal.
To ensure compliance with this Section, the Bidder is to submit with the bid or proposal an Equal
Employment Opportunity Staffing Plan (Form #OCSD-2) identifying the anticipated work force to be
utilized on the Contract and if awarded a Contract, will, upon request, submit an Equal Employment
Opportunity Workforce Employment Utilization Compliance Report identifying the workforce actually
utilized on the Contract, if known, through the New York State Contract System, provided, however, that a
Bidder may arrange to provide such Report via a non-electronic method by contacting Mr. Vikas Gera
(212) 803-3244.
Further, pursuant to Article 15 of the Executive Law (the “Human Rights Law”), all other State and
Federal statutory and constitutional non-discrimination provisions, the Contractor and sub-contractors will
not discriminate against any employee or applicant for employment because of race, creed (religion),
color, sex, national origin, sexual orientation, military status, age, disability, predisposing genetic
characteristic, marital status or domestic violence victim status, and shall also follow the requirements of
the Human Rights Law with regard to non-discrimination on the basis of prior criminal conviction and prior
arrest.
Please Note: Failure to comply with the foregoing requirements may result in a finding of nonresponsiveness, non-responsibility and/or a breach of the Contract, leading to the withholding of
funds, suspension or termination of the Contract or such other actions or enforcement
proceedings as allowed by the Contract.
OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY
OCSD‐1 M/WBE PARTICIPATION / EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ I, ______________________________________________________________________ (CONTRACTOR REPRESENTATIVE), the _____________________________________________________________________________ (AWARDEE/CONTRACTOR) agree to adopt the following policies with respect to the project being developed or services rendered at ______________________________________________________________________________________________________. MWBE PARTICIPATION (MWBE) This organization will and will cause its contractors and subcontractors to take good faith actions to achieve the M/WBE contract participations goals set by the State for that area in which the State‐funded project is located, by taking the following steps: (1)
Actively and affirmatively solicit bids for contracts and subcontracts from qualified State certified MBEs or WBEs, including solicitations to M/WBE contractor associations. (2)
Request a list of State‐certified M/WBEs from ESD’s Office of Contractor and Supplier Diversity (“OCSD”) and solicit bids from the listed vendors directly. OCSD may be reached via email at [email protected]. (3)
Ensure that plans, specifications, request for proposals and other documents used to secure bids will be made available in sufficient time for review by prospective M/WBEs. (4)
Where feasible, divide the work into smaller portions to enhanced participations by M/WBEs and encourage the formation of joint venture and other partnerships among M/WBE contractors to enhance their participation. (5)
Document and maintain records of bid solicitation, including those to M/WBEs and the results thereof. Contractor will also maintain records of actions that its subcontractors have taken toward meeting M/WBE contract participation goals. (6)
Ensure that progress payments to M/WBEs are made on a timely basis so that undue financial hardship is avoided, and that bonding and other credit requirements are waived or appropriate alternatives developed to encourage M/WBE participation. EQUAL EMPLOYMENT OPPORTUNITY POLICY (EEO)
(a) This organization will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, disability or marital status, will undertake or continue existing programs of affirmative action to ensure that minority group members are afforded equal employment opportunities without discrimination, and shall make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force on state contracts. (b) This organization shall state in all solicitation or advertisements for employees that in the performance of the State contract all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of this organization’s obligations herein. (c) At the request of the ESD, this organization shall request each employment agency, labor union, or authorized representative will not discriminate on the basis of race, creed, color, national origin, sex, age, OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY
OCSD‐1 M/WBE PARTICIPATION / EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ disability or marital status and that such union or representative will affirmatively cooperate in the implementation of this organization’s obligations herein. (d) Organization shall comply with the provisions of the Human Rights Law, all other State and Federal statutory and constitutional non‐discrimination provisions. The organization and its sub‐vendors shall not discriminate against any employee or applicant for employment because of race, creed (religion), color, sex, national origin, sexual orientation, military status, age, disability, predisposing genetic characteristic, marital status or domestic violence victim status, and shall also follow the requirements of the Human Rights Law with regard to non‐discrimination on the basis of prior criminal conviction and prior arrest. (e) The organization will include the provisions of sections (a) through (d) of this agreement in every subcontract in such a manner that the requirements of the subdivisions will be binding upon each subcontractor as to work in connection with this contract. Agreed on this _________ day of __________________________ 20________. By: __________________________________________________________ (SIGNATURE) Print Name: ______________________________________________ ______________________________________________ Title: Minority & Women Business Enterprise‐Equal Employment Opportunity Liaison _____________________________________________ (Name of Designated Liaison) is designated as the Minority and Women Business Enterprise Liaison responsible for administering the Minority and Women‐Owned Business Enterprises‐Equal Employment Opportunity (M/WBE‐EEO) program. M/WBE Contract Goals EEO Contract Goals % Minority Business Enterprise Participation % Minority Labor Force Participation % Women’s Business Enterprise Participation % Female Labor Force Participation % TOTAL/OVERALL M/WBE Participation Goal ____________________________________________________________ (Signature of Authorized Representative) Print Name: _____________________________________________ Title: _____________________________________________ Date: ___________________ OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY OCSD‐2 STAFFING PLAN -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Submit with Bid or Proposal – Instructions on page 2 Solicitation No.: Report includes Contractor’s/Subcontractor’s:
Reporting Entity: Work force to be utilized on this contract Total work force Offeror’s Name: Offeror Subcontractor Subcontractor’s Name: Offeror’s Address: Enter the total number of employees for each classification in each of the EEO‐Job Categories identified EEO‐Job Category Officials/Administrators Work force by Gender Total Work force Total Male (M) Work force by Race/Ethnic Identification Total Female (F) White (M) (F) Black (M) (F) Hispanic (M) (F) Asian (M) (F) Native American (M) (F) Disabled (M) (F) Veteran (M) (F) Professionals Technicians Sales Workers Office/Clerical Craft Workers Laborers Service Workers Temporary /Apprentices Totals NAME: PREPARED BY (Signature): TITLE: ______________________________________________________ DATE: TELEPHONE NO.: ALTERNATE TEL: EMAIL ADDRESS: Submit completed with bid or proposal M/WBE 101 (Rev 04/2012) ‐ 1 ‐ OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY OCSD‐2 STAFFING PLAN ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
General Instructions: All Offerors and each subcontractor identified in the bid or proposal must complete an EEO Staffing Plan (M/WBE 101) and submit it as part of the bid or proposal package. Where the work force to be utilized in the performance of the State contract can be separated out from the contractor’s and/or Subcontractor’s total work force, the Offeror shall complete this form only for the anticipated work force to be utilized on the State contract. Where the work force to be utilized in the performance of the State contract cannot be separated out from the contractor’s and/or Subcontractor’s total work force, the Offeror shall complete this form for the contractor’s and/or Subcontractor’s total work force. Instructions: 1. Enter the Solicitation number that this report applies to along with the name and address of the Offeror. 2. Check off the appropriate box to indicate if the Offeror completing the report is the contractor or a subcontractor. 3. Check off the appropriate box to indicate work force to be utilized on the contract or the Offerors’ total work force. 4. Enter the total work force by EEO job category. 5. Break down the anticipated total work force by gender and enter under the heading ‘Work force by Gender’ 6. Break down the anticipated total work force by race/ethnic identification and enter under the heading ‘Work force by Race/Ethnic Identification’. Contact the M/WBE Permissible contact(s) for the solicitation if you have any questions. 7. Enter information on disabled or veterans included in the anticipated work force under the appropriate headings. 8. Enter the name, title, phone number and email address for the person completing the form. Sign and date the form in the designated boxes. RACE/ETHNIC IDENTIFICATION: Race/ethnic designations as used by the Equal Employment Opportunity Commission do not denote scientific definitions of anthropological origins. For the purposes of this report, an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as belonging. However, no person should be counted in more than one race/ethnic group. The race/ethnic categories for this survey are: o
o
o
o
o
WHITE (Not of Hispanic origin) All persons having origins in any of the original peoples of Europe, North Africa, or the Middle East. BLACK a person, not of Hispanic origin, who has origins in any of the black racial groups of the original peoples of Africa. HISPANIC a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race. ASIAN & PACIFIC ISLANDER a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands. NATIVE INDIAN (NATIVE AMERICAN/ALASKAN NATIVE) a person having origins in any of the original peoples of North America, and who maintains cultural identification through tribal affiliation or community recognition. OTHER CATEGORIES: o
o
DISABLED INDIVIDUAL VIETNAM ERA VETERAN o GENDER any person who: ‐ has a physical or mental impairment that substantially limits one or more major life activity(ies) ‐ has a record of such an impairment; or ‐ is regarded as having such an impairment. a veteran who served at any time between and including January 1, 1963 and May 7, 1975. Male or Female ‐ 2 ‐ OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY OCSD‐4 M/WBE UTILIZATION PLAN ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- INSTRUCTIONS: This form must be submitted with any bid, proposal, or proposed negotiated contract or within a reasonable time thereafter, but prior to contract award. This MWBE Utilization Plan must contain a detailed description of the supplies and/or services to be provided by each certified Minority and Women‐owned Business Enterprise (M/WBE) under the contract. Attach additional sheets if necessary. Federal Employer Identification No. (FEIN): Offeror’s Name: Offeror’s Address: Region/Location of Work: City, State, Zip Code: Solicitation No.: Project No.: Telephone No.: 1. Certified M/WBE Subcontractors/Suppliers Federal Employer Identification Number (FEIN), Name, Address, Phone, Fax and Email Address. A. 2. Classification NYS ESD CERTIFIED
MBE M/WBE Goals in the Contract: MBE ‐ % WBE ‐ % 3. Federal ID No. 4. Detailed Description of Work (Attach additional sheets, if necessary) 5. Dollar Value of Subcontracts / Supplies / Services and intended performance dates of each component of the contract. WBE B. NYS ESD CERTIFIED
MBE WBE 6. If unable to fully meet the M/WBE goals set forth in the contract, the Offeror must submit a Waiver Request form, which may be obtained from the Office of Contractor and Supplier Diversity, at [email protected]. ‐ 1 ‐ OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY OCSD‐4 M/WBE UTILIZATION PLAN ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- PREPARED BY (Signature): ____________________________________ DATE: Preparer’s Name (Print or Type): TELEPHONE NO.: Preparer’s Title: REVIEWED BY: Date: SUBMISSION OF THIS FORM CONSTITUTES THE OFFEROR’S ACKNOWLEDGEMENT AND AGREEMENT TO COMPLY WITH THE M/WBE REQUIREMENTS SET FORTH UNDER NYS EXECUTIVE LAW, ARTICLE 15‐A, 5 NYCRR PART 143, AND THE ABOVE‐REFERENCED SOLICITATION. FAILURE TO SUBMIT COMPLETE AND ACCURATE INFORMATION MAY RESULT IN A FINDING OF NONCOMPLIANCE AND POSSIBLE TERMINATION OF YOUR CONTRACT. EMAIL ADDRESS: ** FOR OCSD‐M/WBE USE ONLY ** DATE: UTILIZATION PLAN APPROVED? YES NO Date: Contract No.: Project No. (if applicable): Contract Award Date: Estimated Date of Completion: Amount Obligated Under the Contract: Description of Work: NOTICE OF DEFICIENCY ISSUED? YES NO Date of Issue: NOTICE OF ACCEPTANCE ISSUED? YES ‐ 2 ‐ NO Date of Issue: