§ 11-67 Determining Credit for MBE, WBE and EBE Participation.
RCNY § 11-67
(1)An agency's achievement of its annual goals will be calculated as follows: (a) The dollar amount that an agency has paid or is obligated to pay to a prime contractor which is an MBE, WBE or EBE, reduced by the dollar amount the contractor has paid or is obligated to pay its direct subcontractors upon their completion of work, will be credited toward the relevant goal. Where an agency has paid or is obligated to pay a prime contractor that is both an MBE and a WBE, such amount will be credited toward the relevant goal for MBEs or the goal for WBEs.
(b)Except as provided in subparagraph (c) of this paragraph, the total dollar amount that a prime contractor of any agency has paid or is obligated to pay to a direct subcontractor that is an MBE, WBE or EBE will be credited toward the relevant goal. Where such a contractor has paid or is obligated to pay a direct subcontractor that is both an MBE and a WBE, such amount will be credited toward the relevant goal for MBEs or the goal for WBEs.
(c)In the case of contracts of the types identified pursuant to subparagraph (l) of this paragraph, the total dollar amount that a prime contractor of an agency has paid or is obligated to pay a direct subcontractor that is an MBE, WBE, or EBE, reduced by the dollar amount the direct subcontractor has paid or is obligated to pay its indirect subcontractors upon completion of work, will be credited toward the relevant goal. Where such a contractor has paid or is obligated to pay a direct subcontractor that is both an MBE and a WBE, such amount will be credited toward the relevant goal for MBEs or the goal for WBEs.
(d)In the case of contracts of the types identified pursuant to subparagraph (l) of this paragraph, the total dollar amount that a direct subcontractor of the prime contractor has paid or is obligated to pay to an indirect subcontractor that is an MBE, WBE or EBE will be credited toward the relevant goal. Where such a contractor has paid or is obligated to pay an indirect subcontractor that is both an MBE and a WBE, such amount will be credited toward the relevant goal for MBEs or the goal for WBEs.
(e)For requirements contracts, credit will be given for the actual dollar amount paid under the contract.
(f)Where one or more MBEs, WBEs or EBEs is participating in a qualified joint venture, the amounts that the joint venture is required to pay its direct subcontractors will be subtracted as provided in subparagraph (a) of this paragraph, and then a percentage of the remaining dollar amount of the contract equal to the percentage of total profit to which MBEs, WBEs or EBEs are entitled pursuant to the joint venture agreement will be credited toward the relevant goal. Where such a participant in a joint venture is both an MBE and a WBE, such amount will be credited toward the relevant goal for MBEs or the goal for WBEs.
(g)No credit will be given for participation in a contract by an MBE, WBE or EBE that does not perform a commercially useful function.
(h)No credit will 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 an MBE or WBE 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 will be given to a contractor for participation in a contract by a graduate MBE, WBE or EBE.
(k)The participation of a certified company will 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 will be credited toward the relevant participation goals.
(2)A contractor's achievement of its participation goals established in its utilization plan will be calculated as follows: (a) A contractor's use of direct subcontractors and their indirect subcontractors toward achievement of each goal established in its utilization plan will be calculated in the same manner as described for calculating the achievement of agency utilization goals as described in paragraph (1) of this subdivision, except that a contractor's use of a subcontractor that is both an MBE and a WBE will not be credited toward the contractor's achievement of more than one goal; (b) 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 value of such a contractor's participation be determined by subtracting from the total value of the contract any amounts that the contractor pays to direct subcontractors, and provided further that a contractor that is both an MBE and a WBE will not be credited for its participation toward more than one goal; (c) No credit will be given to the contractor for the participation of a company that is not certified in accordance with Section 1304 of the Charter before the date that the subcontractor completes the work under the subcontract.
(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 an MBE or WBE 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.
