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A business entity denied certification or re-certification as an MBE and/or WBE will be given written notice by DSBS of the grounds for such denial and an opportunity to appeal such denial in writing to the commissioner. Such appeal or a request for an extension to file an appeal must be received by the commissioner no later than sixty (60) days after the date of the notice denying the business enterprise's certification or re-certification. The commissioner may extend the period in which to initiate an appeal for good cause shown. Such appeal must include, at a minimum, a description of the reasons why the decision to deny certification or re-certification is in error and provide evidence to support the appeal. Such business entity must provide such other documentation or information as is requested by the commissioner, in his or her sole discretion. The commissioner will render a written determination no later than one hundred twenty (120) days after receipt of the appeal, unless the time to render a determination has been extended upon agreement of the commissioner and the business enterprise. If the commissioner's determination is not made within the prescribed one hundred twenty (120) days after receipt of the appeal or within the agreed upon extended time period, then the appeal is deemed denied. The decision of the commissioner granting or denying such appeal will constitute the final agency determination.
(a) A certified business must notify DSBS within forty-five (45) days of any material change in the information contained in the certification application. A material change may include, but is not limited to, a change in any of the following: ownership; address; officers; services provided by the certified business; market sector in which the business enterprise operates, bonding capacity of the business enterprise; and the union affiliation(s), if any, of the business enterprise. If a material change occurs, a review may be conducted by DSBS. If the review reveals that the firm is no longer eligible for certification, certification may be revoked pursuant to the procedures set out below in subdivision (d) of this section. If an MBE's and/or WBE's certification is revoked, such business enterprise may not reapply for certification for a period of two (2) years from the date of the written notice revoking certification. If a certified business fails to notify the division of such material change, the division may revoke the certification of an MBE and/or WBE for a period of up to five years.
(b) DSBS, upon having reason to believe or upon receiving allegations indicating that a certified business enterprise is not eligible for certification as an MBE and/or WBE, may meet with minority group members and/or women claiming ownership and control of the certified business and/or conduct an audit of such business enterprise, and will take the following actions:
(1) Determine whether the allegation can be substantiated;
(2) Obtain in writing, if possible, the basis of any allegation from the person or persons making the allegation;
(3) Notify a certified business in writing that its certification as an MBE and/or WBE is under review by the division and may be revoked. This notice will specify the bases for such review and any facts specifically at issue; and
(4) Provide the certified business with an opportunity to respond in writing to any allegations set forth in any notices questioning the certification status of a certified business, within twenty-eight (28) days of the date of such notice, by personal service or certified mail, return receipt requested.
(c) If the minority group members or women claiming ownership of the certified business fail to respond timely in writing to the notice of certification status review, or fail to meet with a DSBS representative or agree to an audit, the certification of the MBE and/or WBE may be revoked by the division.
(d) The division will notify, in writing, a certified business of the revocation of its certification as an MBE and/or WBE within fourteen (14) days of revoking such certification pursuant to 66 RCNY § 11-26(c) or based on a determination that such business is not currently eligible for certification. The minority group members and/or women claiming ownership and control of a business enterprise which has had its certification as an MBE and/or WBE revoked, may request an appeal of this decision within thirty (30) days of the date of the notice of revocation. Such appeal must be conducted in accordance with procedures set forth in 66 RCNY § 11-25. If a request for an appeal is not made within the thirty (30) day period, the division's determination will be final and the business enterprise may not reapply for certification for two (2) years from the date of the notice of revocation provided, however, that if the facts and circumstances forming the basis of the revocation decision have changed significantly, the business enterprise may, at the discretion of the division, be granted permission to reapply sooner.
(e) If at any time DSBS has reason to believe that an applicant or certified business has willfully and knowingly provided incorrect information or made false statements, it will refer the matter to the Department of Investigation for investigation. Falsification of any document by an applicant or a certified business may lead to the imposition of civil and criminal penalties as provided by law and contract and revocation of certification as an MBE and/or WBE.
(f) A business certified as an MBE or WBE may voluntarily withdraw from the M/WBE program by providing written notice to the division, in a format determined by the division, stating the request and the reason for withdrawal. The division will notify, in writing, such MBE or WBE that the withdrawal process is complete no later than thirty (30) days after receipt of the written notice from the business. Following voluntary withdrawal from the M/WBE program, a business shall not reapply for certification for a period of at least one (1) year from the date of the written notice from the division.
(Amended City Record 5/25/2021, eff. 6/24/2021)
(a) DSBS may grant MBE and/or WBE certification status to eligible firms certified as minority owned businesses and/or women owned businesses by other governmental entities in accordance with the criteria and procedures contained in this section.
(b) Eligibility. Firms certified as minority owned businesses and/or women owned businesses by other governmental entities must satisfy the following eligibility requirements to be recognized by the division as certified MBEs and/or WBEs by the city of New York:
(1) The business enterprise must be eligible under 66 RCNY § 11-22; and
(2) The business enterprise must be (i) certified as an MBE and/or WBE by the New York State Department of Economic Development, Division of Minority and Women's Business Development pursuant to Article 15-A of the New York State Executive Law and any rules or regulations promulgated thereunder; or
(ii) The business enterprise must be certified as an MBE and/or WBE by another governmental entity whose minority- and women-owned business enterprise whose certification criteria the commissioner has determined to be consistent with the certification criteria set forth in these rules and must be able to submit documentation evidencing such certification;
(3) The business enterprise must submit the appropriate application(s), form(s) and/or similar document(s) identified by the DSBS for certification pursuant to this section. Failure to submit such information or documentation may result in the rejection of such certification; and
(4) The business enterprise must submit such information or documentation as may be required by DSBS in connection with its certification as an MBE and/or WBE pursuant to this section. Failure to submit such information or documentation may result in the rejection of such certification.
(c) Certification period. Unless the commissioner determines otherwise, the maximum period for which any certification granted by DSBS pursuant to this subdivision is valid will be the period during which the business enterprise is certified as an MBE and/or WBE with the original certifying entity.
Subchapter C: Participation by Minority-Owned and Women-Owned Business Enterprises in Procurements of the City of New York [Repealed]
Subchapter D: Participation by Minority-Owned and Women-Owned Business Enterprises in City Procurement
As used in this subchapter, the following terms have the following meanings:
(1) "Agency" means a city, county, borough, or other office, position, administration, department, division, bureau, board or commission, or a corporation, institution or agency of government, the expenses of which are paid in whole or in part from the city treasury.
(2) "Agency chief contracting officer" means the individual to whom an agency head has delegated authority to organize and supervise the agency's procurement activity.
(3) "Availability rate" means the percentage of business enterprises within an industry classification that are owned by minorities, women or individuals who are socially and economically disadvantaged willing and able to perform agency contracts.
(4) "Bidder" means any person submitting a bid or proposal in response to a solicitation for such bid or proposal from an agency.
(5) "Bidders list" or "proposers list" means a list maintained by an agency that includes persons from whom bids or proposals can be solicited.
(6) "City" means the city of New York.
(7) "City chief procurement officer" means the individual to whom the mayor has delegated authority to coordinate and oversee the procurement activity of mayoral agency staff, including the agency chief contracting officers and any offices that have oversight responsibility for procurement.
(8) "Commercially useful function" means a real and actual service that is a distinct and verifiable element of the work called for in a contract. In determining whether an MBE, WBE or EBE is performing a commercially useful function, factors including but not limited to the following will be considered:
(a) whether it has the skill and expertise to perform the work for which it is being utilized, and possesses all necessary licenses;
(b) whether it is in the business of performing, managing or supervising the work for which it has been certified and is being utilized; and
(c) whether it purchases goods and/or services from another business and whether its participation in the contract would have the principal effect of allowing it to act as a middle person or broker in which case it may not be considered to be performing a commercially useful function for purposes of this section.
(9) "Commissioner" means the commissioner of small business services or his or her designee or his or her successor in function.
(10) "Construction" means construction, reconstruction, demolition, excavation, renovation, alteration, improvement, rehabilitation, or repair of any building, facility, physical structure of any kind.
(11) "Contract" means any agreement, purchase order or other instrument whereby the city is committed to expend or does expend funds in return for goods, professional services, standard services, or construction.
(12) "Contractor" means a person who has been awarded a contract by a city agency.
(13) "Direct subcontractor" means a person who has entered into an agreement with a contractor to provide services or perform work required pursuant to a contract with a city agency.
(14) "Director" means an individual designated by the mayor to perform the oversight functions of the director described in this title who either reports directly to the mayor or is a commissioner.
(15) "Directory" means a list prepared by the division of firms certified pursuant to Section 1304 of the Charter.
(16) "Division" means the division of economic and financial opportunity within the department of small business services.
(17) "EBE" means an emerging business enterprise certified in accordance with Section 1304 of the Charter.
(18) "Geographic market of the city" means the following counties: Bronx, Kings, New York, Queens, Richmond, Nassau, Putnam, Rockland, Suffolk and Westchester within the state of New York; and Bergen, Hudson, and Passaic within the state of New Jersey.
(19) "Goal" means a numerical target.
(20) "Graduate MBE," "graduate WBE" or "graduate EBE" means an MBE, WBE or EBE which must have been awarded contracts by one or more agencies within the past three years where the total city funding from the expense and capital budgets for such contracts was equal to or greater than fifty million dollars and whose size has exceeded the size standards established for its industry by the United States small business administration for three years.
(21) "Human services" means services provided to third parties, including social services such as day care, foster care, home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services including those provided by health maintenance organizations; legal services; employment assistance services, vocational and education programs; and recreation programs.
(22) "Indirect subcontractor" means a person who has entered into an agreement with a direct subcontractor to provide services or perform work required pursuant to the direct subcontractor's contract with a contractor.
(23) "Industry classification" means one of the following classifications:
(a) construction;
(b) professional services;
(c) standard services; and
(d) goods.
(24) "Joint venture" means an association, of limited scope and duration, between two or more persons who have entered into an agreement to perform and/or provide services required by a contract, in which each such person contributes property, capital, effort, skill and/or knowledge, and in which each such person is entitled to share in the profits and losses of the venture in reasonable proportion to the economic value of its contribution.
(25) "MBE" means a minority-owned business enterprise certified in accordance with Section 1304 of the Charter.
(26) "Minority group" means Black Americans; Asian Americans; Hispanic Americans; and Native Americans, provided that the commissioner is authorized to add additional groups to this definition upon a finding that there is statistically significant disparity between the availability of firms owned by individuals in such a group and the utilization of such firms in city procurement.
(27) "Non-certified firm" means a business enterprise that has not been certified as an MBE, WBE or EBE in accordance with Section 1304 of the Charter.
(28) "Person" means any business, individual, partnership, corporation, firm, company, or other form of doing business.
(29) "Professional services" means services that require specialized skills and the exercise of judgment, including but not limited to accountants, lawyers, doctors, computer programmers and consultants, architectural and engineering services, and construction management services.
(30) "Qualified joint venture agreement" means a joint venture between one or more MBEs, WBEs, and/or EBEs and another person, in which the percentage of profit or loss to which the certified firm or firms is entitled or exposed for participation in the contract, as set forth in the joint venture agreement, is at least 25% of the total profit or loss.
(31) "Scope of work" means specific tasks required in a contract and/or services or goods that must be provided to perform specific tasks required in a contract.
(32) "Socially and economically disadvantaged" refers to an individual who has experienced social disadvantage in American society as a result of causes not common to individuals who are not socially disadvantaged, and whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business.
(33) "Standard services" means services other than professional services and human services or services procured under a construction contract.
(34) "Utilization rate" means the percentage of total contract expenditures expended on contracts or subcontracts with firms that are owned by women, minorities, or individuals who are socially and economically disadvantaged, respectively, in one or more industry classifications.
(35) "WBE" means a women-owned business enterprise certified in accordance with Section 1304 of the Charter.
(Amended City Record 5/25/2021, eff. 6/24/2021)
(1) The citywide contracting participation goals for MBEs, WBEs and EBEs, which may be met through awards of prime contracts or subcontracts as described in 66 RCNY § 11-67, are as follows:
For construction contracts: | |
Category: Black Americans Asian Americans Hispanic Americans Native Americans Women Emerging | Participation goal: 12% of total annual agency expenditures on such contracts 11.1% of total annual agency expenditures on such contracts 17.95% of total annual agency expenditures on such contracts 0.56% of total annual agency expenditures on such contracts 25.66% of total annual agency expenditures on such contracts 6% of total annual agency expenditures on such contracts |
For professional services contracts: | |
Category: Black Americans Asian Americans Hispanic Americans Native Americans Women Emerging | Participation goal: 11.81% of total annual agency expenditures on such contracts 9.4% of total annual agency expenditures on such contracts 8.99% of total annual agency expenditures on such contracts 0.65% of total annual agency expenditures on such contracts 36.67% of total annual agency expenditures on such contracts 6% of total annual agency expenditures on such contracts |
For standard services contracts: | |
Category: Black Americans Asian Americans Hispanic Americans Native Americans Women Emerging | Participation goal: 14.32% of total annual agency expenditures on such contracts 9.88% of total annual agency expenditures on such contracts 10.2% of total annual agency expenditures on such contracts 0.03% of total annual agency expenditures on such contracts 29.26% of total annual agency expenditures on such contracts 6% of total annual agency expenditures on such contracts |
For goods contracts under one million dollars: | |
Category: Black Americans Asian Americans Hispanic Americans Native Americans Women Emerging | Participation goal: 5.94% of total annual agency expenditures on such contracts 10.59% of total annual agency expenditures on such contract 7.07% of total annual agency expenditures on such contracts 2.44% of total annual agency expenditures on such contracts 30.51% of total annual agency expenditures on such contracts 6% of total annual agency expenditures on such contracts |
(2) (a) The division and the city chief procurement officer will develop a citywide utilization plan for the procurements of goods.
(b) Agencies will develop agency utilization plans pursuant to 66 RCNY § 11-64. The citywide goals will not be summarily adopted as goals for all annual agency utilization plans; rather, goals for such plans may be set at levels higher, lower, or the same as the citywide goals, subject to the approval of the commissioner as described in paragraph three of 66 RCNY § 11-64. When setting its goals, each agency must consider the citywide goals, the size and nature of its own procurement portfolio, and the availability of MBEs, WBEs and EBEs with the capacity to perform the specific types and scale of work for which the agency anticipates it will solicit procurements during the year. Agencies will seek to ensure substantial progress toward the attainment of these goals in as short a time as practicable.
(3) The citywide goals will not be summarily adopted as goals for individual procurements; rather, as set forth in 66 RCNY § 11-66, goals for such procurements may be set at levels higher, lower, or the same as the citywide goals. In setting such goals, each agency must take into account the citywide goals and the agency's annual utilization plan, the size and nature of the procurement, and the availability of MBEs, WBEs and EBEs with the capacity to perform the specific types and scale of work involved in its procurements.
(4) (a) No later than 2015, the commissioner, in consultation with the city chief procurement officer, will, for each industry classification and each minority group, review and compare the availability rates of firms owned by minorities and women to the utilization rates of such firms in agency contracts and direct subcontracts, and will on the basis of such review and any other relevant information, where appropriate, revise by rule the citywide participation goals set forth in this section. In making such revision, the commissioner will consider the extent to which discrimination continues to have an impact on the ability of minorities and women to compete for city contracts and subcontracts. The commissioner will submit the results of such review and any proposed revisions to the participation goals to the speaker of the council at least sixty days prior to publishing a proposed rule that would revise participation goals. Such review will thereafter be conducted at least once every two years.
(b) No later than 2015, the commissioner will review information collected by the department to determine the availability and utilization of EBEs, and will on the basis of such review and any other relevant information, where appropriate, revise by rule the citywide participation goals set forth in this section. Such revised goals will be set at a level intended to assist in overcoming the impact of discrimination on such businesses. Such review will be conducted in 2015 and at least once every two years thereafter.
(Amended City Record 5/25/2021, eff. 6/24/2021)
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