N.Y. Comp. Codes R. & Regs. tit. 5 § 142.12

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

Section 142.12 - Contractor and State agency complaints

(a) Subsequent to the award of a State contract to a contractor that becomes deficient with regard to its utilization plan, the contractor may file a complaint with the director pursuant to Executive Law, section 316, by personal service or certified mail, return receipt requested, provided that the complaint is filed within twenty (20) days following paragraphs (1), (2), or (3) of this subdivision. The complaint should state the reasons for the information:

(1) the contractor's receipt of a written determination by a State agency that the contractor is not entitled to a partial or full waiver of the goals established in a State contract for participation by certified minority and women-owned business enterprises; or

(2) the contractor's receipt of a written determination by a State agency that the contractor has not acted in good faith, has failed, is failing, or is refusing to comply with goals; or

(3) twenty (20) days have passed from the date of the State agency's receiving a written request from the contractor, sent by certified mail, return receipt requested, for a partial or total waiver of goal requirements for participation by certified minority and women-owned business enterprises, and no written determination has been issued by the State agency.

(b) Within twenty (20) days of the State agency determination that the contractor has not acted in good faith, has failed, is failing, or is refusing to comply with goals for participation by certified minority and/or women-owned business enterprises established in the State contract, a State agency may:

(1) after giving the contractor an opportunity to be heard, make a determination that the contractor has failed to meet the contract goals and assess liquidated or such other damages as were identified in the contract; or

(2) file a complaint with the director, pursuant to Executive Law, section 316, by personal service or certified mail, return receipt requested, accompanied by the reasons for the State agency's determination for which the complaint is filed, together with a demand for relief, such as debarment, damages or fines pursuant to the terms.

(c) A copy of any complaints filed with the director shall also either be personally served or mailed certified mail, return receipt requested, by the party making the complaint to the party against whom the complaint is being filed.

(d) Upon receipt by the director of a complaint, the party against whom the complaint has been filed shall be provided with an opportunity to respond to the complaint. If within thirty (30) days of receipt of the complaint, the director is unable to resolve the complaint to the satisfaction of the State agency and the contractor, the complaint shall be referred to the division's hearing officer for a hearing. The hearing shall be held in accordance with the procedures outlined in section 145.3 of this Title.

(e) Upon conclusion of the administrative hearing, the hearing officer shall submit to the director his or her decision regarding the alleged violation of the contract or the refusal of the State agency to grant a waiver request by the contractor. The decision of the hearing officer with respect to an alleged violation of the State contract or the refusal of the State agency to grant a waiver shall be final and may only be vacated or modified as provided in article seventy-eight of the civil practice law and rules upon an application made within the time provided by such article.

(f) Upon conclusion of the administrative hearing and the rendering of a decision, the hearing officer shall also recommend to the director a remedy, including, if appropriate, the imposition of sanctions, fines or penalties.

(g) The director, within ten (10) days of receipt of the decision, shall file a determination with regard to the imposition of any fines, sanctions or penalties and shall cause a copy of such determination to be served upon the contractor by personal service or by certified mail, return receipt requested. The determination of the director as to the imposition of any fines, sanctions or penalties shall be final and may only be vacated or modified as provided in article 78 of the Civil Practice Law and Rules upon an application made within the time provided by such article.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 142.12

Added, New York State Register, Volume XXXVI, Issue 22, effective6/4/2014

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