§ 11-03 Certification of LBE's.
RCNY § 11-03
(a)Application for certification.
(1)A contractor or subcontractor seeking certification as an LBE is responsible for submission of true and accurate certification documents demonstrating that it meets all eligibility criteria. Falsification of any documents submitted in connection with the LBE program may lead to the imposition of civil and criminal penalties as provided by law and contract and disqualification from the LBE program.
(2)A contractor or subcontractor seeking certification as an LBE when no contract is pending shall submit its certification documents directly to the Division.
(3)A contractor seeking certification as an LBE when bidding on a particular contract shall submit its certification documents to the contracting agency with its bid.
(4)A subcontractor which has been proposed as an LBE subcontractor by a contractor bidding on a contract but has not been certified as an LBE shall have its certification documents submitted by the bidder in the sealed envelope to the contracting agency within 10 days after notification of low bid.
(5)A subcontractor which has been proposed as an LBE subcontractor by a contractor subsequent to contract award but has not been certified as an LBE shall have its certification documents submitted by the contractor in a sealed envelope to the contracting agency within 10 business days from the date that the proposed LBE subcontractor is identified.
(6)The contracting agency shall immediately transmit certification documents it receives to OEFO.
(7)A contractor or subcontractor shall submit such additional information as may be required by OEFO in connection with its certifications as an LBE. Failure to submit such information within 10 business days of the date of a written request may result in the denial or revocation of certification as an LBE.
(8)Consistent with the requirements of Federal, State and City law, neither OEFO nor any contracting agency shall disclose to unauthorized persons confidential business information submitted by contractors and subcontractors.
(b)Eligibility requirements.
(9)Any LBE which has been certified prior to the effective date of these regulations, for a period longer than specified in 66 RCNY § 11-03(b)(1) and (b)(2), must submit certification documents within two months after the effective date of these regulations, unless re-certification has been granted prior to the effective date of these regulations.
(10)It is the intent of these regulations to qualify businesses as LBEs only if the ownership, management and operations of the business are conducted by persons who do not own, manage or operate other similar businesses which would otherwise be ineligible. Any business applying for LBE certification that does not conform to this intent shall be deemed ineligible as an LBE.
(11)An LBE must be an independent business. A business that is a separate entity for tax or corporate purposes shall not necessarily be deemed to be an independent business. In determining whether a business is an independent business, the Division shall consider all relevant factors, including but not limited to the date the business was established, the identity of the principals, the sources of financing and the major shareholders, if any, of the business.
(12)The owner of an LBE must possess the ability to manage the business and to make necessary management and policy decisions. The business must not be subject to any extraordinary formal or informal restrictions which limit the discretion of the owners.
(13)The following types of ownership, control, or circumstances concerning a business seeking certification as an LBE shall render it ineligible for participation in the program: (i) ownership of the business by a non-LBE construction business; (ii) whole or partial ownership of the business by a person who is an owner in whole or in part of another construction business when the sum of the gross receipts of these businesses exceeds the limits as provided for in 66 RCNY § 11-22 "Locally based enterprise"; (iii) whole or partial ownership of a business, formed within three years of application, by a person who is an owner in whole or in part of another construction business not eligible for the program; (iv) control of the business by another construction business through substantial funding arrangements or; (v) organization of a firm in existence for less than one year whose officers, directors, principal stockholders, or employees serve as the officers, directors, principal stockholders, or employees, of another construction business and one concern is furnishing, or will furnish the other concern with subcontracts, financial or technical assistance, or other facilities, whether for a fee or otherwise.
(14)If, after submitting certification documents, a business is found to not meet the requirements for LBE certification as set forth in 66 RCNY § 11-02 "Locally based enterprise" is otherwise ineligible, it may submit other certification documents for certification six months after the date it was declared ineligible.
(15)A joint venture consisting of an LBE and a non-LBE business may participate in the LBE program as a contractor or subcontractor if both joint venturers' contract work is defined clearly. However, only the LBE's share of the contract work shall be credited towards the LBE goal.
(16)An LBE shall notify the Division within 30 days after any change in its ownership or control. In addition, each LBE shall submit a report to the Division by December 30 of each year describing its present ownership and control. The Division shall review any changes made since an LBE's certification to determine whether it remains eligible as an LBE.
(17)A business certified prior to the effective date of these regulations, whose ownership or control has changed shall notify the Division within 30 days of the effective date of these regulations of such change.
(18)Newly formed businesses and businesses whose ownership or control has changed since the date of issuance of these regulations shall be scrutinized by the Division to determine the reasons for the formation, change in the ownership or control of the business.
(19)Once a business is certified as an LBE, it must satisfactorily complete any contracts it is awarded. If an LBE does not satisfactorily complete a contract, it will be required to participate in and successfully complete a technical assistance program through the Department. If the LBE fails to successfully complete or does not participate in the technical assistance program it will be de-certified as an LBE. An LBE will be given an opportunity to respond to any allegations that it has not performed satisfactorily on a contract or that it has not successfully completed or participated in the technical assistance program pursuant to the procedure in 66 RCNY § 11-03(c)(8). If an LBE is de-certified, such business may re-apply for certification after six months from the date of de-certification. It must demonstrate at that time that it has improved its work performance.
(c)Certification responsibilities of the Division.
