§ 6-129 Participation by minority-owned and women-owned business enterprises and emerging business enterprises in city procurement.
AC § 6-129
a. Programs established. There are hereby established a program, to be administered by the department of small business services in accordance with the provisions of this section, designed to enhance participation by minority-owned and women-owned business enterprises in city procurement and a program, also to be administered by such department in accordance with the provisions of this section, designed to enhance participation by emerging business enterprises in city procurement. b. Policy. It is the policy of the city to seek to ensure fair participation in city procurement; and in furtherance of such policy to fully and vigorously enforce all laws prohibiting discrimination, and to promote equal opportunity in city procurement by vigorously enforcing the city's contractual rights and pursuing its contractual remedies. The program established pursuant to this section is intended to address the impact of discrimination on the city's procurement process, and to promote the public interest in avoiding fraud and favoritism in the procurement process, increasing competition for city business, and lowering contract costs. c. Definitions. For purposes of this section, the following terms shall have the following meaning: (1) "Agency" means a city, county, borough, or other office, position, administration, department, division, bureau, board or commission, or a corporation, institution or agency of government, the expenses of which are paid in whole or in part from the city treasury.
(2)"Agency chief contracting officer" means the individual to whom an agency head has delegated authority to organize and supervise the agency's procurement activity.
(3)"Availability rate" means the percentage of business enterprises within an industry classification that are owned by minorities, women or individuals who are socially and economically disadvantaged willing and able to perform agency contracts.
(4)"Bidder" means any person submitting a bid or proposal in response to a solicitation for such bid or proposal from an agency.
(5)"Bidders list" or "proposers list" means a list maintained by an agency that includes persons from whom bids or proposals can be solicited.
(6)"City" means the city of New York.
(7)"City chief procurement officer" means the individual to whom the mayor has delegated authority to coordinate and oversee the procurement activity of mayoral agency staff, including the agency chief contracting officers and any offices that have oversight responsibility for procurement.
(8)"Commercially useful function" means a real and actual service that is a distinct and verifiable element of the work called for in a contract. In determining whether an MBE, WBE or EBE is performing a commercially useful function, factors including but not limited to the following shall be considered: (a) whether it has the skill and expertise to perform the work for which it is being utilized, and possesses all necessary licenses; (b) whether it is in the business of performing, managing or supervising the work for which it has been certified and is being utilized; and (c) whether it purchases goods and/or services from another business and whether its participation in the contract would have the principal effect of allowing it to act as a middle person or broker in which case it may not be considered to be performing a commercially useful function for purposes of this section.
(9)"Commissioner" shall mean the commissioner of small business services.
(10)"Construction" means construction, reconstruction, demolition, excavation, renovation, alteration, improvement, rehabilitation, or repair of any building, facility, physical structure of any kind.
(11)"Contract" means any agreement, purchase order or other instrument whereby the city is committed to expend or does expend funds in return for goods, professional services, standard services, or construction.
(12)"Contractor" means a person who has been awarded a contract by a city agency.
(13)"Direct subcontractor" means a person who has entered into an agreement with a contractor to provide services or perform work that is required pursuant to a contract with a city agency.
(14)"Director" means an individual designated by the mayor to perform the oversight functions of the director described in this section, who either reports directly to the mayor or is a commissioner.
(15)"Directory" means a list prepared by the division of firms certified pursuant to section 1304 of the charter.
(16)"Division" shall mean the division of economic and financial opportunity within the department of small business services.
(17)"EBE" means an emerging business enterprise certified in accordance with section 1304 of the charter.
(18)"Geographic market of the city" means the following counties: Bronx, Kings, New York, Queens, Richmond, Nassau, Putnam, Rockland, Suffolk and Westchester within the State of New York; and Bergen, Hudson, and Passaic within the state of New Jersey.
(19)"Goal" means a numerical target.
(20)"Graduate MBE," "graduate WBE" or "graduate EBE" means an MBE, WBE or EBE which shall have been awarded contracts by one or more agencies within the past three years where the total city funding from the expense and capital budgets for such contracts was equal to or greater than fifty million dollars and whose size has exceeded the size standards established for its industry by the United States small business administration for three years.
(21)"Human services" means services provided to third parties, including social services such as day care, foster care, home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services including those provided by health maintenance organizations; legal services; employment assistance services, vocational and educational programs; and recreation programs.
(22)"Indirect subcontractor" means a person who has entered into an agreement with a direct subcontractor to provide services or perform work that is required pursuant to the direct subcontractor's contract with a contractor.
(23)"Industry classification" means one of the following classifications: (a) construction; (b) professional services; (c) standard services; and (d) goods.
(24)"Joint venture" means an association, of limited scope and duration, between two or more persons who have entered into an agreement to perform and/or provide services required by a contract, in which each such person contributes property, capital, effort, skill and/or knowledge, and in which each such person is entitled to share in the profits and losses of the venture in reasonable proportion to the economic value of its contribution.
(25)"MBE" means a minority-owned business enterprise certified in accordance with section 1304 of the charter.
(26)"Minority group" means Black Americans, Asian Americans, Hispanic Americans and Native Americans, provided that the commissioner shall be authorized to add additional groups to this definition upon a finding that there is statistically significant disparity between the availability of firms owned by individuals in such a group and the utilization of such firms in city procurement.
(27)"Non-certified firm" means a business enterprise that has not been certified as an MBE, WBE or EBE in accordance with section 1304 of the charter.
(28)"Person" means any business, individual, partnership, corporation, firm, company, or other form of doing business.
(29)"Professional services" means services that require specialized skills and the exercise of judgment, including but not limited to accountants, lawyers, doctors, computer programmers and consultants, architectural and engineering services, and construction management services.
(30)"Qualified joint venture agreement" means a joint venture between one or more MBEs, WBEs, and/or EBEs and another person, in which the percentage of profit or loss to which the certified firm or firms is entitled or exposed for participation in the contract, as set forth in the joint venture agreement, is at least 25% of the total profit or loss.
(31)"Scope of work" means specific tasks required in a contract and/or services or goods that must be provided to perform specific tasks required in a contract.
(32)"Standard services" means services other than professional services and human services.
(33)"Utilization rate" means the percentage of total contract expenditures expended on contracts or subcontracts with firms that are owned by women, minorities, or individuals who are socially and economically disadvantaged, respectively, in one or more industry classifications.
(34)"WBE" means a women-owned business enterprise certified in accordance with section 1304 of the charter. d. Citywide goals.
(1)The citywide contracting participation goals for MBEs, WBEs and EBEs, which may be met through awards of prime contracts or subcontracts as described in subdivision j of this section, shall be as follows: For construction contracts: Category:Participation goal:Black Americans12% of total annual agency expenditures on such contractsAsian Americans11.1% of total annual agency expenditures on such contractsHispanic Americans17.95% of total annual agency expenditures on such contractsNative Americans 0.56% of total annual agency expenditures on such contractsWomen25.66% of total annual agency expenditures on such contractsEmerging6% of total annual agency expenditures on such contracts For professional services contracts: Category:Participation goal:Black Americans11.81% of total annual agency expenditures on such contractsAsian Americans9.4% of total annual agency expenditures on such contractsHispanic Americans8.99% of total annual agency expenditures on such contractsNative Americans0.65% of total annual agency expenditures on such contractsWomen36.67% of total annual agency expenditures on such contractsEmerging6% of total annual agency expenditures on such contracts For standard services contracts: Category:Participation goal:Black Americans14.32% of total annual agency expenditures on such contractsAsian Americans9.88% of total annual agency expenditures on such contractsHispanic Americans10.2% of total annual agency expenditures on such contractsNative Americans0.03% of total annual agency expenditures on such contractsWomen29.26% of total annual agency expenditures on such contractsEmerging6% of total annual agency expenditures on such contracts For goods contracts under one million dollars: Category:Participation goal:Black Americans5.94% of total annual agency expenditures on such contractsAsian Americans10.59% of total annual agency expenditures on such contractsHispanic Americans7.07% of total annual agency expenditures on such contractsNative Americans2.44% of total annual agency expenditures on such contractsWomen30.51% of total annual agency expenditures on such contractsEmerging6% of total annual agency expenditures on such contracts (2) (a) The division and the city chief procurement officer shall develop a citywide utilization plan for procurements of goods.
(b)Agencies shall develop agency utilization plans pursuant to subdivision g of this section. The citywide goals shall not be summarily adopted as goals for all annual agency utilization plans; rather, goals for such plans may be set at levels higher, lower, or the same as the citywide goals, subject to the approval of the commissioner as described in paragraph three of subdivision g of this section. When setting its goals, each agency shall consider the citywide goals, the size and nature of its own procurement portfolio, and the availability of MBEs, WBEs and EBEs with the capacity to perform the specific types and scale of work for which the agency anticipates it will solicit procurements during the year. Agencies shall seek to ensure substantial progress toward the attainment of each of these goals in as short a time as practicable.
(c)At any time more than two years after the division has determined that a firm qualifies as a graduate MBE, WBE or EBE, the firm may apply to have such designation lifted. The division shall lift the designation if the firm demonstrates that it has been below the size standards established by the United States small business administration for its industry for a period of two years or more.
(d)In planning procurements, agencies shall consider the effect of the scope, specifications and size of a contract on opportunities for participation by MBEs, WBEs and EBEs.
(e)Prior to soliciting bids or proposals for contracts valued at over ten million dollars, other than contracts for capital projects valued at over twenty-five million dollars and contracts that are exempt pursuant to paragraph two of subdivision q of this section, an agency shall submit the bid or proposal to the city chief procurement officer for a determination whether it is practicable to divide the proposed contract into smaller contracts and whether doing so will enhance competition for such contracts among MBEs, WBEs and EBEs and other potential bidders or proposers. If the city chief procurement officer determines that it is both practicable and advantageous in light of cost and other relevant factors to divide such contracts into smaller contracts, then he or she shall direct the agency to do so.
(f)Agencies shall examine their internal procurement policies, procedures and practices and, where practicable, address those elements, if any, that may negatively affect participation of MBEs, WBEs and EBEs in city procurement. i. Participation goals for contracts for construction and professional and standard services.
(a)A bidder or proposer may request that an agency change the participation goal or goals established for the procurement on the grounds that goals are unreasonable in light of the availability of certified firms to perform the services required, or by demonstrating that it has legitimate business reasons for proposing a lower level of subcontracting in its utilization plan.
(g)No credit shall be given for participation in a contract by an MBE, WBE or EBE that does not perform a commercially useful function.
(h)No credit shall be given for the participation in a contract by any firm that has not been certified as an MBE, WBE or EBE in accordance with section 1304 of the charter.
(h-1)Notwithstanding any provision of this section to the contrary, credit shall be given for work by a contractor or subcontractor that is certified as a minority or women-owned business enterprise pursuant to the executive law where such credit is required by section 311 of the charter or other provision of law, including but not limited to the New York City Rikers Island Jail Complex Replacement Act, part KKK of chapter 59 of the laws of 2018, and the New York City BQE Design-Build Act, part QQQ of chapter 59 of the laws of 2018.
(i)In the case of a contract for which the contractor is paid on a commission basis, the dollar amount of the contract may be determined on the basis of the commission earned or reasonably anticipated to be earned under the contract.
(j)No credit shall be given to a contractor for participation in a contract by a graduate MBE, WBE or EBE.
(k)The participation of a certified company shall not be credited toward more than one participation goal.
(l)The city chief procurement officer may identify types of contracts where payments to indirect subcontractors shall be credited toward the relevant participation goals.
(c-1)Notwithstanding any provision of this section to the contrary, credit shall be given for work by a contractor or subcontractor that is certified as a minority or women-owned business enterprise pursuant to the executive law where such credit is required by section 311 of the charter or other provision of law, including but not limited to the New York City Rikers Island Jail Complex Replacement Act, part KKK of chapter 59 of the laws of 2018, and the New York City BQE Design-Build Act, part QQQ of chapter 59 of the laws of 2018.
