§ 11-04 Responsibilities of Contracting Agencies.
RCNY § 11-04
(a)Overall goals.
(1)Each agency head shall, consistent with the requirements of applicable Federal, State and City law, including applicable competitive bidding requirements, seek to ensure that not less than 10 percent of the total dollar amount of all contracts awarded for construction projects during each fiscal year are awarded to LBEs.
(2)Each agency head shall, consistent with the requirements for applicable Federal, State and City law, require that if any portion of a construction contract is subcontracted, not less than 10 percent of the total dollar amount of the contract shall be awarded to LBEs; except that where less than ten percent of the total dollar amount of the contract is subcontracted, such lesser percentage shall be so awarded.
(b)Contract language. Each contracting agency shall incorporate into each construction contract subject to these regulations to which it becomes a party the following language: Locally Based Enterprise Program (1) This contract is subject to the requirements of Administrative Code § 6-108.1 and the regulations promulgated thereunder. No contract shall be awarded unless and until these requirements have been complied with in their entirety.
(3)The prime contractor shall not require performance and payment bonds from LBE subcontractors.
(4)If the contractor has indicated prior to award that no work will be subcontracted, no work shall be subcontracted without the prior approval of the agency head, which shall be granted only if the contractor makes a good faith effort beginning at least six weeks before the work is to be performed to obtain LBE subcontractors to perform the work.
(5)If the contractor has not identified sufficient LBE subcontractors prior to award, it shall sign a letter of compliance stating that it complies with Administrative Code § 6-108.1, recognizes that achieving the LBE requirement is a condition of its contract, and shall submit documentation demonstrating its good faith efforts to obtain LBEs. After award, the contractor shall begin to solicit LBEs to perform subcontracted work at least six weeks before the date such work is to be performed and shall demonstrate that a good faith effort has been made to obtain LBEs on each subcontract until it meets the required percentage.
(6)Failure of the contractor to comply with the requirements of Administrative Code § 6-108.1 and the regulations promulgated thereunder shall constitute a material breach of contract. Remedy for such breach of contract may include the imposition of any or all of the following sanctions: (i) reducing a contractor's compensation by an amount equal to the dollar value of the percentage of the LBE subcontracting requirement not complied with; (ii) declaring the contractor in default; (iii) where non-compliance is by an LBE, de-certifying and declaring the LBE ineligible to participate in the LBE program for a period of up to three years." (c) Information to bidders. Each contracting agency shall incorporate into all information provided to bidders on construction contracts subject to these regulations the following language: "This contract is subject to the requirements of Administrative Code § 6-108.1 and the regulations promulgated thereunder. No construction contract will be awarded unless and until these requirements have been complied with in their entirety. Be advised that: (1) If any portion of the contract is subcontracted, not less than 10 percent of the total dollar amount of the contract shall be awarded to locally based enterprises ("LBEs"); except, where less than 10 percent of the total dollar amount of the contract is subcontracted, such lesser percentage shall be so awarded.
(i)The "LBE Participation Schedule" shall include: (A) the name and address of each LBE that will be given a subcontract, (B) the percentage, dollar amount and type of work to be subcontracted to LBE, and (C) the dates when the LBE subcontract work will commence and end.
(ii)The following documents shall be attached to the "LBE Participation Schedule": (A) verification letters from each subcontractor listed in the "LBE Participation Schedule" stating that the LBE will enter into a formal agreement for work, (B) certification documents of any proposed LBE subcontractor which is not on the LBE certified list, and (C) copies of the certification letter of any proposed subcontractor which is an LBE.
(iii)Documentation of good faith efforts to achieve the required LBE percentage shall include as appropriate but not be limited to the following: (A) attendance at pre-bid meetings, when scheduled by the agency, to advise bidders of contract requirements; (B) advertisement where appropriate in general circulation media, trade association publications, and small business media of the specific subcontracts that would be at least equal to the percentage goal for LBE utilization specified by the contractor; (C) written notification to associations of small, minority and women contractors soliciting specific subcontracts; (D) written notification by certified mail to LBE firms that their interest in the contract is solicited for specific work items and their estimated values; (E) demonstration of efforts made to select portions of the work for performance by LBE firms in order to increase the likelihood of achieving the stated goals; (F) documented efforts to negotiate with LBE firms for specific subcontracts including at a minimum: (a) The names, addresses and telephone numbers of LBE firms that were contacted, (b) A description of the information provided to LBE firms regarding the plans and specifications for portions of the work to be performed, (c) Documentation showing that no reasonable price can be obtained from LBE firms, (d) A statement of why agreements with LBE firms were not reached; (G) a statement of the reason for rejecting any LBE firm which the contractor deemed to be unqualified; and (H) documentation of efforts made to assist the LBE firms contacted that needed assistance in obtaining required insurance.
(7)The contractor may not substitute or change any LBE which was identified prior to award of the contract without the permission of the agency head. The contractor shall make a written application to the contracting agency head for permission to make such substitution or change, explaining why the contractor needs to change its LBE subcontractor and how the contractor will meet its LBE subcontracting requirement. Copies of such application must be served on the originally identified LBE by certified mail return receipt requested as well as the proposed substitute LBE. The agency head shall determine whether or not to grant the contractor's request for substitution." (d) Implementation – general.
(8)Each contracting agency shall submit quarterly reports, on or before the fifteenth day of January, April, July and October of each year to the Director describing activities undertaken during the previous quarter toward meeting the requirements of Administrative Code § 6-108.1 and these regulations. Quarterly reports of each contracting agency shall contain the following information: (i) The name and telephone number of the agency's LBE liaison officer; (ii) A summary report including but not limited to: (A) the total number of contracts subject to LBE requirements which are registered during the quarter and during the fiscal year to date, (B) the total value of such contracts, (C) the total number and dollar value of LBE prime contracts registered, (D) the total number and dollar value of LBE subcontracts, (E) the total number and dollar value of contracts registered which are subject to MBE/WBE requirements; (iii) A list of LBEs receiving prime contracts or subcontracts including: (A) the nature of their work, and (B) the number and dollar value of prime contracts and subcontracts committed; (iv) A list of all contracts registered during the quarter including: (A) a description of each contract, its budget line and registration date, (B) the dollar amount of the contract, (C) whether the contract is subject to an MBE/WBE requirement, (D) the contractor awarded the contract, (E) whether the contract was awarded to an LBE or MBE/WBE, (F) whether any part of the contract was subcontracted, and (G) if the answer to (F) above, is yes, then: (a) the subcontractor's name, (b) the subcontractor's LBE or MBE/WBE status, (c) a description of each subcontract (i.e., type of work), (d) the dollar amount of each subcontract, and (e) waivers that have been granted during the quarter, if any; (v) The status of any default hearings or other actions the agency is taking with regard to failure of a contractor or LBE to comply with Administrative Code § 6-108.1 and these regulations; and (vi) A list of all prime contractors who have submitted letters of compliance during the quarter.
(e)Implementation – LBE prime contractor participation.
(f)Implementation – LBE subcontractor participation.
(g)Requirements for contract award. No construction contract subject to LBE requirements shall be awarded unless and until the following requirements have been complied with in their entirety: (1) If any portion of the contract is subcontracted, not less than ten percent of the total dollar amount of the contract shall be awarded to LBEs, except where less than ten percent of the total dollar amount is subcontracted, such lesser percentage shall be so awarded.
(9)The contractor may not substitute or change any LBE which was identified prior to award of the contract without the permission of the agency head. The contractor shall make a written application to the contracting agency head for permission to make such substitution or change, explaining why the contractor needs to change its LBE subcontractor and how the contractor will meet its LBE subcontracting requirement. Copies of such application must be served on the originally identified LBE by certified mail return receipt requested as well as the proposed substitute LBE. The agency head shall determine whether or not to grant the contractor's request for substitution.
(10)If the contractor contends that the LBE requirement cannot be met either before or after contract award and can demonstrate a good faith effort to obtain an LBE, a waiver may be granted by the agency head upon approval by the Division.
(h)Subcontractor waivers.
(j)Sanctions.
