§ 11-66 Participation Goals for Contracts for Construction and Professional and Standard Services.
RCNY § 11-66
(1)Prior to issuing the solicitation of bids or proposals for individual contracts that present opportunities for participation by certified firms, agencies must establish participation goals for MBEs, WBEs and/or EBEs. Such goals may be greater than, less than or the same as the relevant citywide goal or goals established pursuant to 66 RCNY § 11-61. Taking into account the factors listed in this subdivision, an agency may establish a goal for a procurement that may be achieved by a combination of prime contract and subcontract dollars, and/or a combination of construction and services performed by a contractor or subcontractor pursuant to the contract, and/or a combination of MBEs, WBEs and/or EBEs. An agency may establish specific goals for particular types of goods or services to be provided by the prime contractor or subcontractors, and/or goals for particular types of certified firms. In determining the participation goals for a particular contract, an agency must consider the following factors: (a) the scope of work; (b) the availability of MBEs, WBEs and EBEs able to perform the particular tasks required in the contract; (c) the extent to which the type and scale of work involved in the contract present prime contracting and subcontracting opportunities for amounts within the capacity of MBEs, WBEs and EBEs; (d) the agency's progress to date toward meeting its annual participation goals through race-neutral, gender-neutral and other means, and the agency's expectations as to the effect such methods will have on participation of MBEs, WBEs and EBEs in the agency's future contracts; and (e) any other factors the contracting agency deems relevant.
(2)A contracting agency shall not be required to establish participation goals: (a) for procurements described in 66 RCNY § 11-74, or portions of procurements excluded pursuant to 66 RCNY § 11-74(1)(i); or (b) when the agency has already attained the relevant goal in its annual utilization plan, or expects that it will attain such goal without the use of such participation goals; or (c) for a procurement to be made in a year for which the director determines that the city has already attained the relevant goal for the industry as set forth in 66 RCNY § 11-61.
(3)(a) For each contract in which a contracting agency has established participation goals, such agency shall state in the solicitation for such contract that bidders and/or proposers shall be required to agree as a material term of the contract that the contractor must meet the participation goals unless such goals are waived or modified by the agency in accordance with this section. An agency must permit a contractor that is an MBE, WBE or EBE to count its own participation toward fulfillment of the relevant participation goal, provided that the agency has determined the value of such a contractor's participation by subtracting from the total value of the contract any amounts that the contractor pays to direct subcontractors. An agency must permit a contractor that is a qualified joint venture to count a percentage of its own participation toward fulfillment of the relevant participation goal. The agency must determine the value of such a contractor's participation by subtracting from the total value of the contract any amounts that the contractor pays to direct subcontractors, and then multiplying the remainder by the percentage to be applied to total profit to determine the amount to which an MBE, WBE or EBE is entitled pursuant to the joint venture agreement. Notwithstanding any provision of this paragraph to the contrary, a contractor's achievement of participation goals must be determined as described in paragraph two of 66 RCNY § 11-67.
(b)Where the agency chief contracting officer determines that it is practicable in light of the nature of goods or services being procured and the expected duration of the contract, a contracting agency shall require bidders or proposers to identify in their bids or proposals the MBEs, WBEs or EBEs they intend to use in connection with the performance of the contract, including their names, addresses and telephone numbers, and require that any substitutions may only be made with the approval of the contracting agency, which shall only be given when the contractor has proposed to use a firm that would satisfy the goals established for the procurement to the same extent as the firm previously identified, unless the contracting agency determines that the contractor has met the standards for establishing reasonable, good faith efforts as provided in subdivision 12 of this section.
(4)For each contract in which participation goals are established, the agency must include in its solicitation and/or bidding materials, a referral to the directories prepared by the division pursuant to 66 RCNY § 11-62.
(5)For each contract for which participation goals are established the contractor must submit with its bid or proposal a utilization plan indicating: (a) whether the contractor is an MBE, WBE, EBE, or a qualified joint venture; (b) the percentage of work it intends to award to direct subcontractors; (c) in cases where the contractor intends to award direct subcontracts, a description of the type and dollar value of work designated for participation by MBEs, WBEs and/or EBEs, and the time frames in which such work is scheduled to begin and end. When the contractor utilization plan indicates that the bidder or proposer does not intend to meet the participation goals, the bid or proposal will not be deemed responsive unless the agency has granted a pre-award request for change pursuant to subdivision 11 of this section; and (d) if required by the contracting agency pursuant to paragraph b of subdivision three of this section, the identity of the MBEs, WBEs or EBEs the contractor intends to use in connection with the contractor's performance of the contract, including their names, addresses and telephone numbers.
(6)(a) For each contract for which a contractor utilization plan has been submitted, the contracting agency must require that within thirty days of the issuance of notice to proceed, and at least twice per year thereafter, the contractor submit a list of persons to which it intends to award subcontracts within the next twelve months, and a written confirmation that the contractor has notified each MBE, WBE or EBE included in such list. For multi-year contracts, the contractor must submit such a list of persons and written confirmation of notification to the agency annually. In the event that a contracting agency disapproves a contractor's selection of a subcontractor or subcontractors, the contracting agency must allow such contractor a reasonable time to propose alternate subcontractors.
(7)For each contract for which a contractor utilization plan has been submitted, the contractor must, with each voucher for payment, and/or periodically as the agency may require, submit statements, certified under penalty of perjury, which must include, but not be limited to, the total amount the contractor paid to its direct subcontractors, and, where applicable pursuant to subparagraph (l) of paragraph (1) of 66 RCNY § 11-67, the total amount direct subcontractors paid to indirect subcontractors, the names, addresses and contact numbers of each MBE, WBE or EBE hired as a subcontractor by the contractor or any of the contractor's direct subcontractors, as well as the dates and amounts paid to each MBE, WBEs or EBEs. The contractor must also submit, along with its voucher for final payment, the total amount it paid to subcontractors, and, where applicable pursuant to subparagraph (l) of paragraph (1) of 66 RCNY § 11-67, the total amount its direct subcontractors paid directly to their indirect subcontractors; and a final list, certified under penalty of perjury, which must include the name, address and contact information of each subcontractor that is an MBE, WBE or EBE, the work performed by, and the dates and amounts paid to each.
(8)If payments made to, or work performed by, MBEs, WBEs or EBEs are less than the amount specified in the contractor's utilization plan, the agency must take appropriate action in accordance with 66 RCNY § 11-72, unless the contractor has obtained a modification of its utilization plan pursuant to paragraph 12 of this section.
(9)When advertising a solicitation for bids or proposals for a contract for which a participation goal has been established, the agency must include in the advertisement a general statement that the contract will be subject to participation goals for MBEs, WBEs and/or EBEs.
(10)In the event that a contractor with a contract that includes a contractor utilization plan submits a request for a change order the value of which exceeds the greater of ten percent of such contract or $500,000, the agency must review the scope of work for the contract, and the scale and types of work involved in the change order, and determine whether the participation goals should be modified.
(11)Requests from bidders or proposers for changes in participation goals.
(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.
(c)Subject to paragraph (d) of this section, the contracting agency may grant a full or partial waiver of the participation goals to a bidder or proposer who demonstrates that it has legitimate business reasons for proposing the level of subcontracting in its utilization plan. The contracting agency will make its determination in light of factors that must include, but not be limited to, whether the bidder or proposer has the capacity and the bona fide intention to perform the contract without any subcontracting, or to perform the contract without awarding the amount of subcontracts represented by the participation goals. In making such determination, the agency may consider whether the utilization plan is consistent with past subcontracting practices of the bidder or proposer, whether the bidder or proposer has made efforts to form a joint venture with a certified firm, and whether the bidder or proposer has made good faith efforts to identify portions of the contract that it intends to subcontract. The city chief contracting officer will notify the council of any such waiver granted with respect to a registered contract in the quarterly report required pursuant to 66 RCNY § 11-69.
(d)The agency M/WBE officer shall provide written notice of requests for a full or partial waiver of the participation goals to the division and the city chief procurement officer and will not approve any such request without the approval of the city chief procurement officer, provided that the city chief procurement officer, upon adequate assurances of an agency's ability to administer its utilization plan in accordance with the provisions of this section, may determine that further approval from the city chief procurement officer is not required with respect to such requests for an agency's contracts or particular categories of an agency's contracts. The city chief procurement officer will notify the speaker of the council and the division in writing in the quarterly report required pursuant to 66 RCNY § 11-69 following the registration of the contract for which the agency granted a request for a full or partial waiver of a participation goal, provided that where an agency has been authorized to grant waivers without approval of the chief procurement officer, such notice will be provided to the speaker of the council and the division by the agency. Such notification will include, but not be limited to, the name of the contractor, the original participation goal, the waiver request, including all documentation, and an explanation for the approval of such request.
(12)Modification of utilization plans at contractor's request or agency's initiative.
(vii)Timely written requests for assistance made by the contractor to the agency M/WBE officer and to the division as well as documented requests for assistance made by the contractor to organizations that provide assistance in the recruitment and placement of MBEs, WBEs and/or EBEs, including but not limited to, minority and/or women community organizations, minority and/or women contractors' groups; local, state and federal business assistance offices; (viii) Description of how recommendations made by the division and the contracting agency, and other organizations described in subparagraph (G) of this paragraph were acted upon and an explanation of why action upon such recommendations did not lead to the desired level of participation of MBEs, WBEs and/or EBEs.
(ix)The contractor rejected bids by MBEs, WBEs and/or EBEs for sound reasons based upon a thorough investigation of their capabilities. The MBE's, WBE's and/or EBE's political or social affiliations or lack thereof will not be a legitimate reason for rejecting or not soliciting bids to meet the goals.
(x)The contractor designated portions of the work to be performed by MBEs, WBEs and/or EBEs in order to increase the likelihood that the goals will be met, including but not limited to, breaking out the work under the contract into feasible units to facilitate MBE, WBE and/or EBE participation.
(xi)The contractor made efforts to assist interested MBEs, WBEs and/or EBEs in obtaining bonding, lines of credit, or insurance as required by the City or the contractor.
(xii)The contractor made efforts to assist interested MBEs, WBEs and/or EBEs in obtaining necessary equipment, supplies, materials, or related assistance or services.
(13)Substitution of the MBE, WBE and/or EBE subcontractor whose participation was necessary to achieve a participation goal will be permitted only with approval of the contracting agency, and only in the following circumstances: (a) Unavailability after receipt of reasonable notice to proceed; (b) Poor performance; (c) Financial incapacity; (d) Refusal by the subcontractor to honor the bid or proposal price or scope; (e) Mistake of fact or law about the elements of the scope of work of a solicitation where a reasonable price cannot be agreed; (f) Failure of the subcontractor to meet insurance, licensing, or bonding requirements; (g) The subcontractor's withdrawal of its bid or proposal; (h) Revocation of the subcontractor's certification as an MBE, WBE or EBE; (i) The contractor becomes aware of information negatively reflecting on the subcontractor's business integrity; (j) Other circumstances allowed by the agency after consultation with the division. Where the contractor has established the basis for substitution to the satisfaction of the contract compliance officer, it must make good faith efforts to substitute with a subcontractor which can be counted toward achievement of the relevant goal. If the contractor plans to hire a subcontractor on any scope of work that was not previously disclosed in the compliance plan, the contractor must obtain approval of the agency M/WBE officer and must make good faith efforts to ensure that MBEs, WBEs and/or EBEs have a reasonable opportunity to bid on the new scope of work.
(14)For each contract in which a contracting agency has established participation goals, the agency will evaluate and assess the contractor's performance in meeting each such goal. Such evaluation and assessment must be a part of the contractor's overall contract performance evaluation required pursuant to Section 333 of the Charter. (Amended City Record 5/25/2021, eff. 6/24/2021)
