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615: Environmental Quality Bond Act Equal Employment and Minority and Women-Owned Business Enterprise Program Regulations

Contents:

Sec.

§615.1 Purpose, Scope and Applicability

(a) The purpose of this Part is to provide a means for assuring the participation of minorities and women as workers and businesses in programs funded or assisted by the New York State Environmental Quality Bond Act of 1986.

(b) This Part is applicable to programs implemented under authority of article 52, titles 1, 3, 5 and 7 of the Environmental Conservation Law (ECL).

§615.2 Definitions

(a) Contract means any State grant, loan, agreement, or any other instrument by which the State provides or otherwise makes available assistance in the form of funds or the services of State personnel.

(b) Contractor means a municipality, natural person or business entity, that is a party to a contract as defined in this section; this term includes general or prime contractors, subcontractors, vendors, consultants, subconsultants, providers of professional services and suppliers.

(c) Department means the Department of Environmental Conservation of the State of New York.

(d) Goals means a quantitative objective to be achieved in a specified period of time, for employment of minority and women workers or contracts with minority and women-owned business enterprises, that is required by contract, and established pursuant to section 615.4 of this Part.

(e) Good-faith efforts means actions taken to meet goals required by contract.

(f) Minority means a member of any of the following groups:

(1) persons having origins in any of the Black African racial groups, not of Hispanic origin;

(2) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American origin, regardless of race;

(3) Asian and Pacific Islander persons having origins in the Far East, Southeast Asia, the Indian subcontinent, or the Pacific islands; and

(4) American Indian or Alaskan native persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation, or community identification.

(g) Minority-owned business enterprise has the meaning set forth in section 52-0113 of the ECL.

(h) Women-owned business enterprise has the meaning set forth in section 52-0113 of the ECL.

§615.3 Contract Requirements

All State-assisted contracts for design, construction, services and materials, and modifications thereof, unless otherwise provided, shall require:

(a) that the contract comply with section 52-0110 of the ECL, regulations and procedures adopted pursuant thereto applicable to equal employment opportunity and minority and women-owned business enterprise programs;

(b) that the contractor contractually require any contractor, subcontractor, consultant and subconsultant with whom it enters into a contract to comply with sections 52-0111 and 52-0113 of the ECL, and any regulations and procedures adopted pursuant thereto applicable to equal employment opportunity and minority and women-owned business enterprise programs;

(c) that the contractor comply with recordkeeping, reporting and notice requirements of the department for the implementation of the equal employment opportunity and minority and women-owned business enterprise programs; and

(d) that sanctions will be imposed for a contractor's failure to comply with the requirements of sections 52-0111 and 52-0113 of the ECL, and any regulations and procedures adopted pursuant thereto.

§615.4 Goal Criteria

The department shall establish goals for contracts to implement the equal employment opportunity and minority and women-owned business enterprise programs. These goals shall be between 12 and 25 percent for minorities, and up to five percent for women, and may be adjusted on the basis of the following criteria:

(a) relevant demographic data;

(b) availability of minorities and women with the requisite skills and minority and women-owned businesses selling services or goods needed for contract performance;

(c) possibilities for recruitment of minorities and women and solicitation of minority and women-owned business enterprises;

(d) training which the contractor can reasonably be able to undertake as a means of making all job titles required for contract performance available to minorities and women;

(e) past performance of a contractor in regard to equal employment opportunities and minority and women-owned business programs;

(f) the department's ability to identify minority and women-owned businesses which can be used by contractors to comply with the goal requirements of the minority and women-owned business enterprise program; and

(g) any other relevant facts or circumstances.

§615.5 Good-faith Efforts Requirement

Contractors shall make good-faith efforts to meet goal requirements of the equal employment opportunity and minority and women-owned business enterprise programs. Good-faith efforts may include:

(a) timely preparation and submission of a utilization plan for the approval of the department that states employment goals proposed for minorities and women, and contracts expected to be executed with minority and women-owned businesses;

(b) actions to implement the plan referred to in subdivision (a) of this section which provide for:

(1) advertisement in appropriate general-circulation, trade and minority-and women-oriented media;

(2) timely notice of job and contract opportunities;

(3) the development and maintenance of lists for purposes of notifying minorities and women of employment and contracting opportunities; and

(4) maintenance of records required by the department for documenting the contractor's actions to implement the plan, which identify minorities and women soliciting employment and contract opportunities; and

(c) any other actions specified by the department prior to and during the performance of the contract.

§615.6 Compliance

The department has authority to determine whether the requirements of sections 52-0111 and 52-0113 of the ECL have been met. In making these assessments, the department may:

(a) seek information and request documents necessary to make a determination of compliance;

(b) ascertain whether the contractor has made a good-faith effort to meet goal requirements;

(c) prescribe means for measuring contractor compliance with goals;

(d) provide contractors written notice of actions to be taken to avoid determinations of noncompliance;

(e) provide for imposition of sanctions upon a determination of noncompliance.

§615.7 Sanctions

Sanctions shall be imposed for failure to meet the goal requirements, unless the department determines that goal requirements should be waived because a contractor has made a good-faith effort to comply with goal requirements. Sanctions may consist of the following:

(a) reduction of the contract price;

(b) suspension or termination of the contract;

(c) retaining payments until compliance is achieved;

(d) prohibition against further contracts with the department for specified periods of time; and

(e) other penalties of which a contractor has notice in writing prior to or during the performance of a contract.

§615.8 Eligibility Criteria for Minority and Women-owned Business Enterprises

A business entity is eligible to participate in the minority and women-owned business program, as a minority or women-owned business, if: 51 percent of all equity interests in the business entity are owned by minority or women principals; such ownership interest is real, substantial and continuing, and the minority or women principals have authority to independently control the day-to-day business decisions of the business firm. The department shall accept, as eligible for participation in the minority and women-owned business enterprise program, firms which have been certified under the New York State minority and women-owned business enterprise certification program. In determining eligibility for participation in the minority and women-owned business enterprise program and as an agency participating in the New York State minority and women-owned business enterprise certification program, the department shall consider the following factors:

(a) the relative experience, expertise or capabilities necessary to the operation of the firm's business, possessed by minority and women principals, as compared to that of other principals in the firm;

(b) the contributions of capital to a firm in the form of money, real property, equipment or other assets made by minority or women principals, as compared to those made by other principals in the firm;

(c) the distribution of a firm's wealth between minority or women principals and other principals in the firm;

(d) the existence of any relationships, between minority or women principals and other principals in the firm, or other firm, which might affect the ability of minority or women principals to control business decisions of the firm;

(e) the authority of minority or women principals to make business decisions by virtue of a firm's organizational structure, corporate bylaws or certificate of incorporation, partnership agreement, or any other agreement between minority or women principals and other principals in the firm; and

(f) any other facts or circumstances determined to be relevant by the department.

§615.9 Procedures to Challenge Equal Employment Opportunity and Minority and Women-owned Business Enterprise Program Determinations

(a) A person having any questions about the basis of any determinations made pursuant to sections 52-0111 and 52-0113 of the ECL, and any regulations or procedures adopted pursuant thereto, may call the Office of Affirmative Action at (518) 457-7187 at the department's central office in Albany.

(b) A person may petition the department for a declaratory ruling in accordance with the procedures contained in Part 619 of this Title, with respect to the applicability to any person of sections 52-0111 and 52- 0113 of the ECL, these regulations and any procedures adopted pursuant thereto.

(c) A person deciding to challenge the basis of any equal employment opportunity and minority and women-owned business enterprise program determinations must do so in writing, within 30 business days of the date of the department's determination. The written challenge must state the factual determinations of the department with which the person disagrees and the nature of any legal issues presented by the challenge.

(d) Upon receipt of the written challenge, the department will determine whether the initial determination should be revised or may request additional information.

(1) If the department agrees with the person making the written challenge, it shall notify that person of its agreement.

(2) If the department does not agree with the person, it shall notify the person accordingly, with an explanation of the reasons for the disagreement, together with a form letter for the person to use if further review is requested.

(e) If the person receives a notice of disagreement and continues to believe the department is wrong, that person must complete and mail the form letter to the department, at the address provided, within 10 business days of the date of the notice.

(f) Upon receipt of the request for further review, the Office of Affirmative Action will arrange for a conference with a designated representative(s) of the department, to be held at the department's central office in Albany or a mutually agreed-upon location. The department will give the person at least 10 business days' notice of the time and place of the conference.

(g) The purpose of the conference is to afford the person challenging the department's determination the opportunity to narrow factual disagreements, to state more specifically the legal basis of any challenge, and to resolve the controversy if possible. It is the person's responsibility to state precisely the basis for the challenge and to offer supporting documentation necessary to support the claim.

(h) Except for good cause, the failure of a person challenging a determination of the department to take any actions required for a challenge, within the time periods set forth in this section, shall be a basis for a determination by the department that the challenge has been abandoned, resulting in the department's determination becoming final.

(i) Within 30 business days following the conference, the department's designated representatives will notify the person in writing of the department's determination.

§615.10 Severability

If any provision of this Part or the application thereof to any person or circumstance is determined to be contrary to law by a court of competent jurisdiction, such determination shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.