§ 11-74 Applicability.
RCNY § 11-74
(1)Agencies will not be required to apply participation requirements to the following types of contracts: (a) those subject to federal or state funding requirements which preclude the city from imposing the requirements of this subchapter; (b) those subject to federal or state law participation requirements for MBEs, WBEs, disadvantaged business enterprises, and/or EBEs; (c) contracts between agencies; (d) procurements made through the United States general services administration or another federal agency, or through the New York state office of general services or another state agency, or any other governmental agency; (e) emergency procurements pursuant to Section 315 of the Charter; (f) sole source procurements pursuant to Section 321 of the Charter; (g) contracts for human services; (h) contracts awarded to not-for-profit organizations; (i) contracts, or portions of contracts, that the director determines should be exempt because, after an extensive search conducted by the contracting agency, it appears that there are not MBEs, WBEs or EBEs available to perform the work.
(2)Unavailability Determinations Procedures.
(a)When making requests for exemptions pursuant to paragraph i of subdivision 1 of this section, the contracting agency shall consider the following: (i) whether the total contract value exceeds 10 million dollars; (ii) the contracting agency's reasonable efforts to engage in outreach activities with MBEs, WBEs or EBEs that could potentially perform the specific types and scale of work required on the contract; (iii) the contracting agency's efforts to advertise the opportunity and send written notices of specific procurement opportunities to MBEs, WBEs or EBEs; and (iv) the contracting agency's inability to locate MBEs, WBEs or EBEs with the necessary qualifications, including an appropriate amount of experience, to perform the specific types and scale of work required on the contract, despite making efforts described in subparagraphs (ii) and (iii) of this paragraph.
(b)Prior to the bid or proposal due date for a procurement, the agency may file a request for exemption with the director. A request for this exemption filed with the director shall include the following: (i) the requesting agency's name; (ii) the anticipated contract period of performance and the estimated contract dollar value; (iii) documentation of the agency's effort to locate MBE, WBE, or EBE firms available to perform the work; and (iv) a memorandum describing the agency's justification for setting a zero percent M/WBE participation goal for the contract or a portion of the contract.
(c)The director shall notify the contracting agency in writing of his or her final determination regarding the agency request for exemption or partial exemption of the contract.
(d)The director may instruct an agency to consider the factors set forth in paragraph a of this subdivision, and transmit documentation of the agency's efforts to locate MBE, WBE, or EBE firms available to perform the work associated with a contract or a portion of a contract. After receipt of such information but prior to the bid or proposal due date for the contract, the director may issue a determination to exempt the contract, in whole or in part.
(e)If the director decides to exempt a contract, or a portion of a contract, pursuant to this subdivision before the solicitation is released, the solicitation documents shall reflect a zero percent MBE, WBE and EBE participation goal for the entire contract or the exempted portion of the contract. If the director decides to exempt a contract, or a portion of a contract, after the release of a solicitation, the solicitation shall be amended to reflect the removal of the MBE, WBE and EBE participation goal or any portion of such goal. For procurements made by competitive sealed bidding or competitive sealed proposals, such amendment shall be made, pursuant to 9 RCNY § 3-02(i) or 9 RCNY § 3-03(f)(2), but in no event shall such an amendment be made to a solicitation less than five days prior to the date set for receipt of bids or proposals. (Amended City Record 5/25/2021, eff. 6/24/2021)
