§ 10-04 Responsibilities of Contracting Agencies.
RCNY § 10-04
(a)Contract language – all contracts. Each contracting agency shall incorporate into every contract in excess of the small purchase limit established by rule of the Procurement Policy Board to which it becomes a party the following language: "This contract is subject to the requirements of Executive Order No. 50 (April 25, 1980) (Appendix to 66 RCNY Chapter 10) ("E.O. 50") and the Rules and Regulations promulgated thereunder. No contract will be awarded unless and until these requirements have been complied with in their entirety. By signing this contract, the contractor agrees that it: (1) will not discriminate unlawfully against any employee or applicant for employment because of race, creed, color, national origin, sex, age, handicap, marital status, sexual orientation or citizenship status with respect to all employment decisions including, but not limited to recruitment, hiring, upgrading, demotion, downgrading, transfer, training, rates of pay or other forms of compensation, layoff, termination, and all other terms and conditions of employment; (2) will not discriminate in the selection of subcontractors on the basis of the owner's, partners' or shareholders' race, color, creed, national origin, sex, age, handicap, marital status, sexual orientation or citizenship status; (3) will state in all solicitations or advertisements for employees placed by or on behalf of the contractor that all qualified applicants will receive consideration for employment without regard to race, creed, color, national origin, sex, age, handicap, marital status, sexual orientation or citizenship status or is an equal employment opportunity employer; (4) will send to each labor organization or representative of workers with which it has a collective bargaining agreement or other contract or memorandum of understanding, written notification of its equal employment opportunity commitments under E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder; (5) will furnish before the contract is awarded all information and reports including an Employment Report which are required by E.O. 50 (Appendix to 66 RCNY Chapter 10) the rules and regulations promulgated thereunder, and orders of the Director of the Office of Labor Services ("Division"). Copies of all required reports are available upon request from the contracting agency; and (6) will permit the Division to have access to all relevant books, records and accounts by the Division for the purposes of investigation to ascertain compliance with such rules, regulations, and orders. The contractor understands that in the event of its noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, such noncompliance shall constitute a material breach of the contract and noncompliance with E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder. After a hearing held pursuant to the rules of the Division, the Director may direct the imposition by the contracting agency head of any or all of the following sanctions: (i) disapproval of the contractor; (ii) suspension or termination of the contract; (iii) declaring the contractor in default; or (iv) in lieu of any of the foregoing sanctions, the Director may impose an employment program. The Director of the Division may recommend to the contracting agency head that a contractor who has repeatedly failed to comply with E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder be determined to be nonresponsible. The contractor agrees to include the provisions of the foregoing paragraphs in every subcontract or purchase order in excess of the small purchase limit established by rule of the Procurement Policy Board to which it becomes a party unless exempted by E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Director of the Division of Labor Services as a means of enforcing such provisions including sanctions for noncompliance. The contractor further agrees that it will refrain from entering into any contract or contract modification subject to E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder with a subcontractor who is not in compliance with the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder." (b) Special provisions for construction contracts. In addition to the contractual provisions required in 66 RCNY § 10-04(a), each contracting agency shall incorporate into every contract for a construction project in excess of $125,000 to which it becomes a party the following language: "The contractor further agrees that it shall employ trainees for training level jobs and it shall participate in on-the-job training programs other than apprenticeship programs which are approved by the Division and where required by law, the U.S. Department of Labor, Bureau of Apprenticeship Training or the New York State Department of Labor. The contractor shall make a good faith effort to achieve the ratio of one (1) trainee to four (4) journey-level employees of each trade on each construction project; provided, that the trainee requirement shall not apply to contracts in the amount of $125,000 or less. "Trainee" means an economically disadvantaged person who qualifies for and receives training in one of the construction trades pursuant to a program, other than an apprenticeship program, approved by the Division and, where required by law, the New York State Department of Labor and the United States Department of Labor, Bureau of Apprenticeship and Training. The contractor shall be considered to employ 4 journey-level employees in a particular trade when he or she employs any number of journey-level employees in that craft whose aggregate work hours equal the number of hours 4 full-time journey-level employees would have worked in a work week as defined by the prevailing practice in the industry for the particular craft, i.e., 40 hours, 37 1/2 hours, 35 hours, etc. For example, in a craft where there is a forty-hour work week, the employment of 4 journey-level employees results in 160 hours of employment (4 × 40). Hence, any number of journey-level employees which results in 160 hours of work is considered for purposes of the training program to equal 4 journey-level employees, i.e., 3 journey-level employees who work 53 1/3 hours (3 × 53 1/3 = 160). The training requirement shall not apply to any trade in which the employment of four or more journey-level employees and the trainee shall be for less than 4 consecutive weeks; provided, that 4 weeks shall mean 4 weeks of full-time work as defined by the prevailing practice in the industry for the particular craft, i.e., 160 hours (4 weeks × 40 hours), 150 hours (4 weeks × 37 1/2 hours), 140 hours (4 weeks × 35 hours), etc. The contractor shall attempt to provide continuous employment for trainees after the completion of the contract to enable them to complete their course of training. Union contractors shall refer, recommend and sponsor for union membership any of their trainees who can perform the duties of a qualified journey-level employee or who have satisfactorily completed the training program. Such former trainee shall be paid full journey-level wages and fringe benefits, whether or not union membership is granted after such referral, recommendation or sponsorship, and the contractor shall attempt to continue the employment of such persons. In the event of a failure to provide training to the required number of trainees for the required number of weeks, the contractor's compensation shall be decreased by an amount equal to the difference between the wages and fringe benefits paid by the contractor to the trainees and the wages and fringe benefits which would have been paid to the trainees had the number and duration of the positions been as required unless the contractor can demonstrate that it made a good faith effort to provide training and was unsuccessful. The wages and fringes deducted will be whatever a first term trainee would have received under the prevailing wage schedule in effect at the time the trainees should have been employed. A good faith effort includes at least: (i) documented efforts to secure trainees from approved training programs; and (ii) documented outreach efforts to New York State Employment Service, Department of Employment, TAP Centers, community and civil rights groups to identify candidates for training positions and sponsorship of those persons by the contractor for entrance into an approved training program; and (iii) written notification to the Division that the contractor has been unable to secure trainees pursuant to paragraphs (i) and (ii) above and requesting the Division's assistance in securing trainees; provided, that neither the provisions of any collective bargaining agreement nor the refusal by a union with whom the contractor has a collective bargaining agreement to recognize the validity of the training program shall excuse the contractor's obligation to provide training pursuant to E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations. To demonstrate its good faith effort, the contractor may at its option supply documentation concerning its employment of trainees on all its construction sites, both City and non-City funded. The Division will review this documentation as part of its analysis to determine whether the contractor made a good faith effort. The contractor will also include the training provisions of this section in every subcontract in excess of $125,000 to which it becomes a party unless exempted by E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any subcontract as the Division may direct as a means of enforcing such provisions, including sanctions for noncompliance. The contractor further agrees that it will assist and cooperate with the Division in obtaining the compliance of subcontractors with the requirements of E.O. 50 (Appendix to 66 RCNY Chapter 10) and the rules and regulations promulgated thereunder, and it will furnish the Division with information necessary for supervision of such compliance." (c) Special provisions for city-assisted contracts. [Reserved.] (d) Preaward compliance generally.
(1)No contracting agency shall enter into a construction contract in excess of $1 million, or a supply and service contract in excess of the small purchase limit established by rule of the Procurement Policy Board for procurement for goods and services when the contractor employs 50 or more employees, unless the contractor's Employment Report is first submitted to the Division for its review and approval.
(2)The contracting agency, at the time a proposed covered contractor is identified, either through low bid or negotiation, shall notify the Division in writing of the name of the proposed contractor, the contract in question and dollar amount.
(3)The contracting agency shall transmit a completed Employment Report to the Division within ten business days after the identification of a proposed covered contractor.
(4)The contracting agency may thereafter award a contract, unless the Division gives prior written notice to the contracting agency and the contractor as follows: (i) If the Division notifies the contracting agency and the contractor within five business days after the receipt by the Division of the Employment Report that the contractor has failed to submit a complete report, the Director may require the contracting agency to disapprove the contractor unless such deficiency is corrected in a timely manner; and (ii) If the Division notifies the contracting agency and the contractor within fifteen business days of the receipt by the Division of the completed Employment Report that the Division's analysis of the contractor's workforce indicates underutilization and therefore the Division has reason to believe that the contractor is not in substantial compliance with applicable legal requirements and the provisions of E.O. 50 (Appendix to 66 RCNY Chapter 10) and these regulations, the Division shall promptly take such action as may be necessary to remedy the contractor's noncompliance. These time limits shall apply to the review of all Employment Reports submitted by subcontractors or contractors who are a party to a requirements contract or an open market purchase agreement.
(iii)The time limits for this subdivision (d) begin to run on the business day following receipt of the Employment Report.
(5)The contracting agency shall notify the Division in writing of the award of a covered contract.
(6)With respect to covered supply and service contracts, the contracting agency shall also: (i) notify the Division upon the submission of the prime contractor's Employment Report of any subcontracts in excess of the small purchase limit established by rule of the Procurement Policy Board for procurements for goods and services where the subcontractor employs 50 or more employees; and (ii) transmit the subcontractor's completed Employment Report to the Division for review and approval.
(7)With respect to covered construction contracts, the contracting agency shall in addition: (i) notify the Division in writing of its commencement to work order; (ii) notify the Division in writing of the contractor's application for approval of subcontractors and transmit to the Division the subcontractors' completed Employment Reports for review and approval before allowing the contractor to subcontract any work; and (iii) notify the Division in writing when the contract is 98 percent complete. (Amended City Record 10/31/2023, eff. 11/30/2023)
