The following policy applies only to ESD construction projects:
Only sums paid to MWBEs for the performance of a commercially useful function, as that term is defined in 5 NYCRR § 140.1, may be applied towards the achievement of the applicable MWBE participation goal.
- MWBE Suppliers: 60% utilization credit – NYS-certified MWBEs that serve, and are coded, as construction suppliers, may only receive credit for 60% of any payments received.
- For example, an MWBE construction supplier with $1,000 in utilization (payments) may only count $600 (60%) towards its MWBE goal.
- Generally, suppliers will have a North American Industry Classification System ("NAICS") code beginning with 423 or 424, or a National Institute of Governmental Purchasing ("NIGP") code that does NOT begin with the number “9.” This is not an exhaustive list, and each vendor, project and code should be reviewed independently.
- Suppliers are defined as firms that sell goods out of their revolving inventory.
- MWBE Brokers: Commission Only – NYS-certified MWBES that serve, and are coded, as construction Manufacturers’ Representatives/Brokers, may only receive credit for the commission they receive or their markup percentage for brokering supplies.
- Any firms that are coded as brokers or manufacturers’ representatives (i.e. NAICS code 425120) in their MWBE certification profile fall in this category. This is not an exhaustive list, and each vendor, project and code should be reviewed independently.
- MWBE Manufacturers: 100% utilization credit – NYS-certified MWBEs that serve and are coded as a manufacturer may receive 100% credit for their MWBE utilization.
- Manufacturers are firms that produce and distribute the item themselves.
For non-construction projects:
- MWBE Manufacturers/Suppliers: 100% utilization credit – Manufacturers that produce and distribute the item themselves and suppliers that sell goods out of their revolving inventory may receive 100% utilization credit.
- MWBE Broker: 25% utilization credit – Any firms that are listed as brokers or manufacturers’ representatives that fall in this category may receive 25% utilization credit.
Certification Codes Policy
MWBE and SDVOB utilization credit, which are the payments counted towards the MWBE and/or SDVOB goals, can be based solely on the work the MWBE/SDVOB is coded to perform in their certification profile. If a certified firm performs work for which they do not have the applicable commodity codes (NAICS and/or NIGP codes) as part of their certification profile, ESD may not count those activities and payments towards the project’s goals.
MWBE Certification Application Expedite Policy
ESD grantees and contractors may request that the certification review for an MWBE applicant be expedited, via OCSD-7. For this request to be processed, the following criteria must be met:
- The request should be for a firm that has a pending MWBE certification application in the NYSCS.
- The procurement/award must not yet have been made. If the MWBE applicant has already been awarded the work, the request to expedite the certification review will not be processed.
- The requestor must have searched the NYS Directory of Certified MWBEs and found no certified MWBEs suitable and/or available to perform the work needed.
- Copies of all searches and the results must be submitted with the expedite request.
- If the search for current MWBEs resulted in certified firms, the requestor must provide specific and detailed written reasons for not utilizing certified MWBEs that resulted from the search of the NYS Directory of Certified MWBEs.
Good Faith Efforts Requirement
“Good Faith Efforts” is the standard applied to the MWBE and SDVOB participation requirements in all applicable ESD projects. ESD grantees and contractors shall adhere to this standard and ensure that proactive and ongoing efforts are made throughout the project to include MWBE and SDVOB participation of NYS-certified firms in all categories.
For OCSD to evaluate “Good Faith Efforts”, grantees and contractors must maintain detailed records of their efforts to include NYS-certified MWBEs and SDVOBs in the project completion.
For additional details regarding “Good Faith Efforts,” please review the following: