N.Y. Comp. Codes R. & Regs. tit. 5 § 140.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 140.1 - Definitions

(a) Affirmative Action Program and Equal Employment Opportunity Program. A program involving the implementation of procedures and methods for the identification, recruitment and employment of minority group members and women. Such programs must include equal access to advancement and procedures for investigating claims of discrimination because of race, creed, color, national origin, sex, age, disability or marital status. The overall result to be sought is to expand the employment opportunities of minority group members and women, also referred to as workforce diversity requirements.

(b) Applicant. A business enterprise which has applied for certification as a bona fide minority or woman-owned business enterprise.

(c) Business enterprise. Any entity, including a sole proprietorship, partnership, limited liability partnership, limited liability company or corporation, including not-for-profit corporations, which is authorized to and engages in lawful business transactions in accordance with New York law.

(d) Certified enterprise or certified business. A business enterprise which has been approved by the division of minority or woman-owned business enterprise status subsequent to verification that the business enterprise is owned, operated, and controlled by minority group members or women, and that also meets the financial requirements of subdivision (ff) of this section, and is a small business pursuant to subdivision (hh) of this section.

(e) Chief Diversity Officer. The Governor's principal advisor and representative regarding all matters related to State agency procurement policies concerning minority and women-owned business enterprises and State agency government workforce diversity.

(f) Commercially useful function. A minority or women-owned business enterprise performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, a minority or women-owned business enterprise must, where applicable and in accordance with any State agency specifications, also be responsible, with respect to materials and supplies used on the contract, for ordering and negotiating price, determining quality and quantity and installing. A minority or women-owned business enterprise does not perform a commercially useful function if its role adds no substantive value and is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of participation. Factors to be used in assessing whether a minority or women-owned business is performing a commercially useful function include:

(1) the amount of work subcontracted;

(2) industry practices;

(3) whether the amount the minority or women-owned business enterprise is to be paid under the contract is commensurate with the work it is to perform;

(4) the credit claimed towards minority or women-owned business enterprise utilization goals for the performance of the work by the minority or women-owned business enterprise; and

(5) any other relevant factors.

(g) Contract scope of work. For purposes of this Subtitle, contract scope of work shall mean the scope of work set forth in the State contract including, but not limited to, services, products or other deliverables required by such contract and specific tasks required by such contract.

(h) Contracting agency. A party to a State contract, as defined in subdivision (kk) of this section, and in the case of contractual opportunities emanating from financing provided by the New York State Housing Finance Agency, Housing Trust Fund Corporation or Affordable Housing Corporation, as described in subdivision (jj) of this section.

(i) Contracting categories. Major procurement categories for which State agencies shall establish a master goal plan or, where applicable, an update to the master goal plan, as defined in subdivisions (y) and (pp) of this section, respectively, and a four-year growth plan, as defined in subdivision (vv) of this section, to promote the participation of certified minority and women-owned business enterprises.

(j) Contractor. An individual, a business enterprise, a not-for-profit corporation, or any other party to a State contract, or a bidder in conjunction with the award of a State contract or a proposed party to a State contract.

(k) Day or business day. A State business day unless otherwise specified.

(l) Director. The director of the New York State Department of Economic Development, Division of Minority and Women's Business Development, who may also be referred to as the executive director.

(m) Directory. The directory of certified enterprises, prepared by the director, for use by State agencies and contractors in complying with the provisions of article 15-A of the Executive Law.

(n) Disparity Study. The latest published study of New York State minority and women owned business enterprise programs commissioned by the State pursuant to section 312-a of the Executive Law.

(o) Diversity practices. The contractor's past, present, and prospective practices and policies with respect to:

(1) utilizing certified minority or women-owned business enterprises in contracts awarded by State agencies, other public entities or private sector companies, as subcontractors and suppliers; and

(2) entering into partnerships, joint ventures or other similar arrangements with certified minority or women-owned business enterprises as defined in this Part or other applicable federal, state, or local statutes or regulations, or certified by the certifying entities recognized by the division governing an entity's utilization of minority or women-owned business enterprises; and

(3) any other information requested by the State agency or activities, supported by affidavit, that demonstrate the contractor's commitment to a policy of diversity practices related to minority or women-owned business enterprises.

(p) Division. The office in charge of minority and women's business development in the department of economic development.

(q) Equal employment opportunities or EEO. A contractor and subcontractor's conscientious and active efforts to afford employment opportunities to minority group members and women without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.

(r) Expenditure. Any payment by a State agency, including but not limited to payments made pursuant to a State contract, purchase order, invoice or non-personal services.

(s) Articles of Procurement. Shall mean a commodity, service, technology, public work, construction, revenue contract, the purchase, sale, or lease of real property or an acquisition or granting of other interest in real property that is the subject of a governmental procurement, as defined in State Finance Law section 139-j.

(t) Goals. The term referring to the percentage of aggregate agency expenditures targeted for the participation of certified minority and/or women-owned business enterprises sought to be included in State procurement opportunities as prime contractors, subcontractors, suppliers, consultants, joint ventures, teaming agreements, or other similar arrangements. Goals may be expressed as agency-specific or contract goals.

(u) Hearing officer. An individual who has been appointed by the director to hear:

(1) appeals of decisions denying or revoking certification; and

(2) complaints regarding:

(i) a State agency's denial of a waiver;

(ii) a State agency's disqualification of a contractor before an award is made;

(iii) a contractor's failure or refusal to abide by a utilization plan after an award is made; or

(iv) a contractor's noncompliance with Equal Employment Opportunity obligations after an award is made.

(v) Joint venture. A contractual agreement joining together two or more business enterprises, one of which is a certified minority or woman-owned business enterprise, for the purpose of performing on a State contract. The certified minority or woman-owned business enterprise must provide a percentage of value added services representing an equitable interest in the joint venture. All parties agree to share in the profits and losses of the business endeavor according to their percentage of equitable interest.

(w) Labor force availability data. Data pertaining to the relevant availability and expected levels of participation of minority group members and women on State contracts. The data is developed by the New York State Department of Economic Development, Division of Minority and Women's Business Development, in cooperation with and including but not limited to, the Department of Labor and any other New York State or federal governmental data collecting agency that collects such data, and is based upon the most recent census data provided by the New York State Department of Labor, Bureau of Labor Market Information, aggregated by the Division of Minority and Women's Business Development into federal occupational categories.

(x) Lessee. An individual or a business enterprise, including concession vendors, or any other party to a lease in which the lessor is a State agency as defined in subdivision (ii) of this section.

(y) Master goal plan. An agency-specific annual goal plan, which establishes agency goals and identifies expenditures, strategies, personnel, processes and procedures intended to increase the participation of certified minority and women-owned business enterprises in the subject State agency's procurement.

(z) Mentor-Protege agreement. A contract between a prime contractor, the "Mentor," and a minority or women-owned business enterprise, the "Protege," in which there is a transfer of knowledge, technology, or other resources, which promotes the economic growth of the minority or women-owned business enterprise or fosters the establishment of a long term business relationship between the parties.

(aa) Minority group member. A United States citizen or permanent resident alien who is and can demonstrate membership in one of the following groups:

(1) Black persons having origins in any of the African racial groups;

(2) Hispanic/Latino persons of Mexican, Puerto Rican, Dominican, Cuban, Central American or South American descent of either Native American or Latin American origin, regardless of race;

(3) Native American or Alaskan native persons having origins in any of the original peoples of North America; or

(4) Asian and Pacific Islander persons having origins in any of the Far East countries, South East Asia, the Indian Subcontinent or the Pacific Islands.

(bb) Minority-owned business enterprise. A business enterprise that is:

(1) at least 51 percent owned by one or more United States citizens or permanent resident aliens who are minority group members;

(2) an enterprise in which such minority ownership is real, substantial and continuing;

(3) an enterprise in which such minority ownership has and exercises the authority to control and operate, independently, the day-to-day business decisions of the business enterprise;

(4) an enterprise authorized to do business in this State and is independently owned and operated;

(5) an enterprise owned, either directly or through a holding company established for the exclusive and sole purpose of leasing machinery, equipment, or vehicles exclusively to the certified minority or women-owned business enterprise, by an individual or individuals, whose ownership, control and operation are relied upon for certification, with an individual personal net worth at the time of application that does not exceed fifteen million dollars, as adjusted annually on the first of January for inflation according to the consumer price index of the previous year starting in 2020; or such other amount that the director shall determine on an industry-by-industry basis; and

(6) an enterprise that is a small business pursuant to subdivision (hh) of this section.

(cc) New York State Department of Economic Development, Division of Minority and Women's Business Development or "the division" The office responsible for implementing the requirements of article 15-A of the Executive Law.

(dd) New York State minority and women-owned business enterprise certification application. The form that the division requires an applicant to submit for purposes of applying for minority or woman-owned business enterprise status.

(ee) Not dominant in its field. A business enterprise which does not exercise a controlling influence on an industry in its field of operation.

(ff) Personal net worth. The aggregate adjusted net value of the assets of an individual remaining after total liabilities are deducted. Personal net worth includes the individual's share of assets held jointly with said individual's spouse and does not include the individual's ownership interest in the certified minority and women-owned business enterprise, the individual's equity in his or her primary residence, ownership interest in a holding company established for the exclusive and sole purpose of leasing machinery, equipment, or vehicles exclusively to the certified minority or women-owned business enterprise, that is majority owned by the minority group member or woman relied upon for certification, and the holding company does not own any other assets of any kind; or up to seven hundred and fifty thousand dollars of the present cash value of any qualified retirement savings plan or individual retirement account held by the individual less any penalties for early withdrawal. Personal net worth shall be calculated on an individual basis and shall not be aggregated in instances where there are multiple individuals relied upon for certification.

(gg) Significant business presence. A business authorized to do business in New York State, and that makes a contribution to the New York State economy through payment of taxes, or the purchase of made in New York State products or materials, or that has any payroll in New York State.

(hh) Small business. A business which has a significant business presence in the State, is independently owned and operated, and is not dominant in its field, but in no event employs more than three hundred people. In determining whether the enterprise meets the definition of a small business as herein provided, consideration shall be given to federal small business administration standards prescribed in 13 CFR Section 121.201, effective as of August 22, 2008. A copy of 13 CFR Section 121.201 can be accessed at the Office of Size Standards, Small Business Administration, 409 3rd Street, SW Washington, DC 20416.

(ii) State agency.

(1) any State department;

(2) any division, board, commission or bureau of any State department;

(3) the State University of New York and the City University of New York, including all their constituent units except community colleges and the independent institutions operating statutory or contract colleges on behalf of the State;

(4) a board, a majority of whose members are appointed by the Governor or who serve by virtue of being State officers or employees as defined in subparagraph (i), (ii) or (iii) of section 73 (1)(i) of the Public Officers Law;

(5) A "State authority," as defined in subdivision one of section two of the public authorities law, and the following: Albany County Airport Authority; Albany Port District Commission; Alfred, Almond, Hornellsville Sewer Authority; Battery Park City Authority; Cayuga County Water and Sewer Authority; (Nelson A. Rockefeller) Empire State Plaza Performing Arts Center Corporation; Industrial Exhibit Authority; Livingston County Water and Sewer Authority; Long Island Power Authority; Long Island Rail Road; Long Island Market Authority; Manhattan and Bronx Surface Transit Operating Authority; Metro-North Commuter Railroad; Metropolitan Suburban Bus Authority; Metropolitan Transportation Authority; Natural Heritage Trust; New York City Transit Authority; New York Convention Center Operating Corporation; New York State Bridge Authority; New York State Olympic Regional Development Authority; New York State Thruway Authority; Niagara Falls Public Water Authority; Niagara Falls Water Board; Port of Oswego Authority; Power Authority of the State of New York; Roosevelt Island Operating Corporation; Schenectady Metroplex Development Authority; State Insurance Fund; Staten Island Rapid Transit Operating Authority; State University Construction Fund; Syracuse Regional Airport Authority; Triborough Bridge and Tunnel Authority; Upper Mohawk Valley Regional Water Board; Upper Mohawk Valley Regional Water Finance Authority; Upper Mohawk Valley Memorial Auditorium Authority; and Urban Development Corporation and its subsidiary corporations; and

(6) The following only to the extent of State contracts entered into for its own account or for the benefit of a State agency as defined in paragraphs (1) through (5) of this subdivision:

Dormitory Authority of the State of New York;

Facilities Development Corporation;

New York State Energy Research and Development Authority.

(jj) State-assisted housing project. A project which receives a grant or loan for all or part of the total project cost from the New York State Housing Finance Agency, the Affordable Housing Corporation, Housing Trust Fund Corporation or the Division of Housing and Community Renewal;

(1) a permanent housing project for homeless families or project as defined in section 64 (5) of the Private Housing Finance Law;

(2) a project as defined in section 1101 (12) of the Private Housing Finance Law provided said project is located in a large county and consists of more than 12 residential units at a single site. For purposes of this paragraph, large county shall have the same meaning as set forth in section 310(5) of article 15-A of the Executive Law;

(3) affordable home ownership development programs or project as defined in section 1111 (8) of the Private Housing Finance Law provided said project is located in a metropolitan area as herein defined and consists of more than 12 residential units at a single site. For purposes of this paragraph metropolitan area shall have the same meaning as set forth in section 310(6) of article 15-A of the Executive Law;

(4) a turnkey/enhanced rental project or project as defined in section 1106-a (2) of the Private Housing Finance Law;

(5) infrastructure improvements as defined in section 1131 (2) of the Private Housing Finance Law, to the extent that such infrastructure improvements are applied for in connection with a State-assisted housing project as defined in paragraphs (1) through (4) of this subdivision and provided further that the applicant for such infrastructure improvements and for such State-assisted housing project is identical.

(kk) State contract. For purposes of this Subtitle, State contract shall mean:

(1) Any written agreement, and amendment(s) thereto, providing for a total expenditure in excess of twenty-five thousand dollars ($25,000), whereby a State agency is committed to expend or does expend funds in return for labor, services, including legal, financial and other professional services, travel, supplies, equipment, materials or any combination of the foregoing, to be performed for, or rendered or furnished to the contracting agency;

(2) a written agreement in excess of one hundred thousand dollars ($100,000) whereby a contracting agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon;

(3) a written agreement in excess of one hundred thousand dollars ($100,000) whereby the owner of a State-assisted housing project is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon for such project;

(4) leases of real property by a State agency to a lessee where the terms of such leases provide for the State agency to be engaged in construction, demolition, replacement, major repair or renovation of real property and improvements thereon, and the cost of such construction, demolition, replacement, major repair or renovation of real property and improvements thereon is in excess of one hundred thousand dollars ($100,000);

(5) a written agreement whereby a State agency purchases, sells, leases, acquires or grants an interest in real property and where the terms of such agreement provide for a party to such agreement to

(i) perform construction, construction-related services, or services necessary to complete the transfer of interest in real property, or

(ii) purchase a commodity related to the activities set forth in subsection (5)(i);

(6) all revenue contracts and articles of procurement as defined in State Finance Law Section 139-j, provided that any such agreement for the purchase, sale or lease of real property or an acquisition or granting of other interest in real property must satisfy the requirements set forth in section (kk)(5)(i)-(ii).

(ll) Subcontract. Any agreement for a total expenditure in excess of twenty-five thousand dollars ($25,000) resulting from a State contract providing for services, including non-staffing expenditures, supplies or materials of any kind between a business enterprise and a prime contractor, in which a portion of the prime contractor's obligation under the State contract is undertaken or assumed by a business enterprise not owned or controlled by the prime contractor.

(mm) Substantially fails. A contracting agency that has failed to make a good faith effort as determined by the division to meet sixty (60) percent of its annual agency-specific goals.

(nn) Supplemental Application. The form that the division requires an applicant to submit for purposes of applying for expeditious certification based on certification as a minority and women-owned business enterprise by entities referenced in sections 144.5 and 144.6.

(oo) Teaming Agreement. A utilization plan arrangement between two or more parties, one of which is a certified minority or women-owned business enterprise, to perform on a specific State contract if awarded to the team. The team itself may be a joint venture, or one of the team members may be designated to act as the prime contractor, and the other member(s) designated to act as subcontractors.

(pp) Update to the master goal plan. An annual update to an existing master goal plan that is submitted by an agency to the division in lieu of a full master goal plan as defined in subdivision (y) of this section.

(qq) Utilization plan. The plan which must be submitted by a contractor to a State agency listing certified minority and/or women-owned business enterprises that the contractor intends to use in the performance of a proposed State contract, or any components of the contract scope of work which the contractor intends certified minority and/or women-owned business enterprises to perform. The plan shall specifically contain a list, including the name, address and telephone number of each certified enterprise with which the contractor intends to subcontract, or otherwise submit in connection with satisfaction of the contract goals.

(rr) Value added. A substantive increase to the performance of a State contract by a certified minority and/or women-owned business enterprise as a joint venture partner, subcontractor, consultant, or supplier, where such a certified minority and/or women-owned business enterprise performs a commercially useful function pursuant to subdivision (f) of this Section.

(ss) Verification. Any act necessary to determine whether a business enterprise seeking to be certified by the division is owned, controlled and operated by principals who are members of a minority group, as defined in subdivision (aa) of this section, or women; and that those principals' personal net worth does not exceed the limitations listed in subdivision (ff) of this section. Such acts may include, but are not limited to, request(s) for documents in addition to the initial application and inspection of the place of business.

(tt) Waiver form. The form provided by a State agency to a contractor as part of a solicitation, relative to a request by the contractor to set aside or modify the participation of certified minority and women-owned business enterprises in the performance of State contracts.

(uu) Women-owned business enterprise.

(1) A business enterprise that is:

(i) at least 51 percent owned by one or more United States citizens or permanent resident aliens who are women;

(ii) an enterprise in which the ownership interest of such women is real, substantial and continuing;

(iii) an enterprise in which such women ownership has and exercises the authority to control and operate, independently, the day-to-day business decisions of the enterprise;

(iv) an enterprise authorized to do business in this State and which is independently owned and operated;

(v) an enterprise owned, either directly or through a holding company established for the exclusive and sole purpose of leasing machinery, equipment, or vehicles exclusively to the certified minority or women-owned business enterprise, by an individual or individuals, whose ownership, control and operation are relied upon for certification, with an individual personal net worth at the time of application that does not exceed fifteen million dollars, as adjusted annually on the first of January for inflation according to the consumer price index of the previous year starting in 2020; or such other amount that the director shall determine on an industry-by-industry basis; and

(vi) an enterprise that is a small business pursuant to subdivision (hh) of this section.

(2) An enterprise owned by a minority group member who is also a woman may be certified as a minority-owned business enterprise, a women-owned business enterprise, or both, and may be counted towards either a minority-owned business enterprise goal or a women-owned business enterprise goal, in regard to any contract or any goal, set by a State agency, but such participation may not be counted towards both such goals and may not be divided between the minority-owned business enterprise goal and the women-owned business enterprise goal by a State agency.

(vv) Four-year growth plan. The plan which must be submitted by contracting agencies as part of its annual goal plan or as otherwise prescribed by the division, to determine a means of promoting and increasing participation by minority-owned and women-owned business enterprises with respect to State contracts and subcontracts.

(ww) Statewide Advocate. The Statewide Advocate shall mean the person appointed by the commissioner to serve in the capacity of the minority-and women-owned business enterprise Statewide Advocate. The Statewide Advocate shall have all the powers and duties prescribed under Article 15-A.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 140.1

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

Amended New York State Register December 2, 2020/Volume XLII, Issue 48, eff. 12/2/2020