N.Y. Comp. Codes R. & Regs. tit. 5 § 142.3

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

Section 142.3 - Diversity practices, bidding and award considerations

(a) The contracting State agency shall determine whether it is practical, feasible and appropriate to include in the evaluation of bids or proposals the diversity practices of all contractors making submissions for the award of any State contract that is:

(1) awarded on the basis of best value, or otherwise awarded as a response to a request for a proposal and/or a request for qualifications; and

(2) anticipated to result in an award of two hundred fifty thousand dollars ($250,000) or greater; and

(3) not a contract based on lowest price.

(b) A determination by a contracting agency as to whether it is practical, feasible and appropriate to assess the diversity practices of all contractors making such submissions shall include consideration of the following:

(1) nature of the labor, services, supplies, equipment and materials being procured;

(2) method of procurement undertaken to make the award; and

(3) availability of certified minority and women-owned business enterprises for contract performance.

(c) If a contracting agency makes a determination that the evaluation of diversity practices is not practicable, feasible, or appropriate for a subject State contract, such determination shall be supported by findings in writing.

(d) After a determination has been made to assess the diversity practices of prime contractors submitting bids or proposals in connection with the award of a State contract, the contracting agency shall require the submission of diversity practices information as part of a contractor's bid or proposal and establish a quantitative factor for scoring diversity practices.

(e) Diversity practices information submitted for assessment by all contractors must be fully documented and, if required by the director, subject to audit. Such submissions shall include, but not necessarily be limited to, the following:

(1) The percentage of such prime contractor's gross revenues involving the use of minority-and/or women-owned business enterprise subcontractors for servicing clients and/or manufacturing products and/or performing on contracts in the contractor's prior fiscal year of business activity;

(2) The percentage of such contractor's gross revenues involving the use of joint ventures, partnerships, or other similar arrangements with certified minority and/or women-owned business enterprises in the contractor's prior year of business activity;

(3) The percentage of such contractors' gross revenues that the contractor paid to certified minority and/or women-owned business enterprise subcontractors and paid to certified minority and/or women-owned business enterprise joint ventures, partnerships, or other similar arrangements;

(4) The percentage of such contractor's non-contract related/overhead expenses for the prior fiscal year of business activity that were certified minority and/or women-owned business enterprise expenditures;

(5) Any training or mentoring programs provided for certified minority and/or women-owned business enterprises by such contractor.

(6) Any supplier and subcontractor diversity goals involved in such contractor's procurements.

(7) Any established goals for certified minority and/or women-owned business enterprise suppliers or a total purchasing budget allocated to certified minority and/or women-owned business suppliers by such contractors.

(8) The utilization plan for the award as required by section 142.4 of this Part; and

(9) Any other information that demonstrates such contractor's commitment to diversity practices.

(f) The director shall provide each State agency with numerical guidelines for assessing a contractor's past, present and prospective practices and policies with respect to:

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

(2) entering into partnerships, joint ventures or other similar arrangements with certified minority-and 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-and women-owned business enterprises; and

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

(g) When numerical guidelines pursuant to subdivision (f) of this section or other numerical guidelines created by the State agency and submitted to and approved by the director, are used in the assessment of a response to a bid or proposal, it shall be included in the solicitation. The assessment is to be used as one of the factors in determining the award of such a contract.

(h) Nothing in this section shall prevent the director from establishing, notwithstanding subdivision (e) of this section, contract specific numerical guidelines for individual State contracts where necessary.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 142.3

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