Summary of Article 15-A of the Executive Law
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to Article 15-A.
Article 15-A of the Executive Law, signed into law on
July 19, 1988, authorized the creation of an Office (now
Division) of Minority and Women's Business Development to
promote employment and business opportunities on state
contracts for minorities and women. Under this statute,
state agencies are charged with establishing employment and
business participation goals for minorities and women.
Article 15-A has nine sections. This summary is intended to
familiarize you with major portions of the law. Rules and
regulations providing specific instructions and criteria for
implementing the program are available by contacting the
Division of Minority and Women's Business Development in New
York City or Albany.
Section 310: Definitions
MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISE (MWBE):
At least 51% owned and controlled by the minority members
and or women;
The minority and or women ownership interest, is real,
substantial and continuing;
The minority and or women ownership has and exercises the
authority to independently control the day-to-day business
decisions;
Independently owned, operated and authorized to do business
in New York State.
NOTE: Businesses eligible to participate in the program must
be owned and operated by women and or minority group members
who are citizens of the United States or permanent resident
aliens. Generally they must be in operation for at least one
year.
MINORITY GROUP MEMBER:
A United States citizen or permanent resident alien who has
and can demonstrate membership in one of the following
groups:
Black persons having origins in any of the Black African
racial groups;
Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
Central or South American
Descent of either Indian or Hispanic origin, regardless of
race;
Native American or Alaskan native persons having origins in
any of the original peoples of North America;
Asian and Pacific Islander persons having origins in any of
the Far East countries, South East Asia, the Indian
subcontinent or the Pacific Islands.
CONTRACTOR:
An individual, a business enterprise including a sole
proprietorship, a partnership, a corporation, a
not-for-profit corporation, or any other party to a state
contract, or a bidder in conjunction with the awarding of a
state contract or a proposed party to a state contract.
STATE CONTRACTS:
A written agreement or purchase order instrument providing
for a total expenditure of more than $25,000 by a
contracting agency in return for labor, services, supplies,
equipment and or materials or any combination of the
foregoing or providing for a total expenditure of more than
$100,000 by a contracting agency or by the owner of a
state-assisted housing project in return for the
acquisition, construction, demolition, replacement, major
repair, renovation or improvements of real property. The
term "services" does not include banking relationships, the
issuance of insurance policies or contracts, or other
contracts for the sale of bonds, notes or other securities.
Section 311: Division of Minority and Women's
Business Development
The Division of Minority and Women's Business Development
administers, coordinates, and implements a statewide program
to assist the development of M WBEs and facilitate their
access to state contracting opportunities, and promotes
equal employment opportunities. Through the process of
certification, this agency is responsible for verifying
minority and women-ownership and control of firms
participating in the program .
The powers and responsibilities of the Director are to:
Assist state agencies in their efforts to award a "fair
share" of contracts to MWBEs;
Develop standardized forms and reporting documents for
purpose of implementing
Article 15-A;
Conduct educational programs to facilitate access to
assistance under the program; periodically review agency
practices and procedures to determine compliance with
program requirements;
Report annually to the Governor and Legislature;
Prepare and maintain an updated directory of certified
minority and women-owned firms;
Appoint independent hearing officers to preside over
certification appeal hearings;
File complaints for violations in regard to equal employment
opportunities;
Streamline the state certification process to accept federal
and municipal corporation certification
This provision further authorizes the Director to provide
necessary technical assistance to the businesses (applicants
included) to ensure that they benefit from business
development programs. This would include a review of bonding
and paperwork requirements imposed by contracting agencies
which may be burdensome to M WBEs. The Director may, either
independently or in conjunction with other state agencies,
develop a clearinghouse of information regarding services
available to assist business owners.
Section 311-a: Minority and Women-owned
Business Enterprise Statewide Advocate
This section establishes an office of the minority and
women-owned business enterprise statewide advocate within
the Department of Economic Development. The advocate will
act as a liaison for the minority and women-owned businesses
enterprises (MWBEs) to assist them in obtaining technical,
managerial, financial and other business assistance for
certified businesses and applicants. Furthermore, the
advocate shall investigate complaints brought by or on
behalf of MWBEs concerning certification delays and
instances of violations of the law by state agencies. In
addition, the statewide advocate shall establish a toll-free
number at the Department to be used to answer questions
concerning the MWBE certification process.
Section 312: Equal Employment Opportunities for
Minority Group Members and Women
Under this section, state agencies and the Director of the
Division of Minority and Women's Business Development must
act to ensure and promote equal employment on state
contracted projects.
State agencies must include the following contract
provisions in all state contracts in regard to work
performed within the state:
prohibition against discrimination in employment;
solicitation of statement of nondiscrimination from unions
and employment agencies;
nondiscrimination clause in employment solicitations and
advertisements;
application of similar clauses in all subcontracts except
those which ( 1 ) are unrelated to work on the state
contract and (2) duplicate or conflict with federal EEO law.
State agencies are also charged with monitoring contractor
compliance with the law. In determining compliance with
state equal employment requirements, these agencies shall
waive application of state equal employment provisions where
they duplicate or conflict with corresponding federal laws.
Where a contractor fails or refuses to comply with equal
employment requirements, state agencies may recommend
corrective action to the Director.
The Director promulgates rules and regulations applicable to
equal employment of minority group members and women on
state contracts. Under these regulations, contractors must
submit a plan of efforts to use minority group members and
women after bid opening and prior to the award of the
contract. Contractors and subcontractors may also be
required to submit periodic compliance reports on their
equal employment activities.
Section 312-a: Study of minority and
women-owned business enterprise programs
This section directs the director of the MWBE program within
the Department of Economic Development to commission a
statewide disparity study regarding the participation of
minority and women-owned business enterprises in state
contracts. The study shall be conducted by an entity
independent of the Department and selected through a request
for proposal process.
The purpose of the study is to determine whether there is
disparity between the number of qualified minority and
women-owned businesses ready, willing and able to perform
state contracts for commodities, services and construction
and the number of such contractors actually engaged to
perform such contracts and to determine what changes, if
any, should be made to state policies affecting minority and
women-owned business enterprises.
Section 313: Opportunities for Minority and
Women-Owned Business Enterprises (M WBEs)
This section requires the Director to promulgate rules and
regulations to ensure that minority and women-owned firms
are awarded a "fair share" of state contracts. These rules:
require contractors to submit a minority and women-owned
business enterprise ("MWBE") utilization plan for each of
their contracts;
require agencies to review these utilization plans for
compliance and notify contractors of deficiencies;
allow contractors time to correct the noted deficiency
and or request a complete or partial waiver of compliance
with goal requirements; agencies must evaluate "good faith"
attempts to comply in deciding whether to grant or deny
waiver requests;
grant contractors a right to submit a complaint to the
Director when an agency fails or refuses to issue a
requested waiver, and similarly, allow agencies to submit a
complaint to the Director for contractor noncompliance;
state that failure to correct noted deficiencies in a
utilization plan is grounds for disqualifying a bid or
proposal, and that the contractor is entitled to a hearing
on the record on the disqualification. The decision rendered
as to the disqualification is reviewable pursuant to Article
78;
allow the Director to first attempt to resolve
non-compliance complaints before referring the complaint to
arbitration;
require agencies to include an arbitration consent clause in
bid specification;
provide that the Federal law(s) apply where there is a
conflict or duplication on the issue of MWBE obligations.
Section 314: Statewide Certification Program
This section requires the Division of Minority and Women's
Business Development to conduct a certification program and
to prepare a directory of certified minority and women-owned
firms. This Division has promulgated rules and regulations
specifying criteria for approval, denial and revocation of
certification. Appeals of certification determination will
be heard by independent hearing officers, if requested by
the applicant within thirty (30) business days of notice of
a denial decision. After hearing the appeal, the independent
hearing officer will issue a recommended order (decision).
The Director will issue a final order (decision) within 30
days accepting, rejecting or modifying the recommended
order. The Director's order will represent the final
determination on the application but may be appealed under
Article 78.
Section 315: Responsibilities of Contracting
Agencies
Under this section, state agencies have the following
responsibilities:
to monitor contracts and recommend corrective action to the
Director where appropriate;
to comply with rules and regulations promulgated by the
Director;
to make available a current copy [copies] of the directory
of certified minority and women-owned firms to prospective
bidders and to contractors;
to report activities undertaken to promote M WBE contract
participation and employment of minorities and women to the
Director; and
to generally provide such information and assistance as
necessary to carry out the intent of the statute.
Section 316: Enforcement
The Director is required to take the following actions to
promote participation by minority and women-owned firms on
state contracts:
attempt to resolve complaints made by either a contractor
denied a waiver, or an agency against a contractor for
noncompliance;
refer unresolved complaints to the American Arbitration
Association for recommendations;
adopt, reject or modify arbitration determination; the
Director may not, however, impose a new greater sanction,
penalty or fine than that recommended by the arbitrator(s).
Section 317: Supersession Clause
The provisions of Article 15-A supersede any other provision
of state law which mandates or implements programs of equal
employment opportunity or minority and women-owned business
participation in actions by state contractors to which the
article apply. However, provisions of state laws which are
not superseded but which mandate such programs shall remain
unimpaired by the article except that such laws shall be
construed as if the provisions of subdivisions five, six,
seven and eight of section 313 and of section 316 of Article
15-A were fully set forth therein and made applicable only
to complaints of violations of such laws that occurred on or
after September 1, 1988.
This section also permits voluntary affirmative action
efforts by contracting agencies to secure participation by
M WBEs with regard to banking relationships, the issuance of
policies or contract for the sale of bonds, notes or other
securities.
Section 318: Severability Clause
This section states that if any part of this statute is
found invalid by the courts, the remaining parts will
continue to be valid and enforceable.