N.Y. Comp. Codes R. & Regs. tit. 5 § 142.6

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

Section 142.6 - Submission and review of utilization plans

(a) In the case of a request for proposals, request for qualifications, or negotiated State contracts, for which contract goals have been set, the time for submitting the utilization plan shall be upon submission of any proposal, qualifications, or negotiated contract. The State agency may waive or modify this requirement by sending a written notice to the director with an explanation ten (10) days before solicitations are issued.

(b) In the case of any bid submission, utilization plans shall be submitted after the opening of bids, but in no case more than ten (10) business days after the contractor receives notice from a State agency that the contractor has submitted a low bid, provided the agency may adopt a longer time period for submission of utilization plans as to all or particular categories of its contracts upon filing of such period and any supporting justification with the director, and subject to rejection or modification by the director. Any such modification or rejection shall apply to contract solicitations on or after the date of the rejection or modification.

(c) The State agency shall review a utilization plan submitted by a contractor and issue a written notice of acceptance or deficiency regarding the utilization plan no later than twenty (20) days after receipt of the utilization plan, and prior to the execution of the contract resulting from said procurement. A State agency may accept a utilization plan if:

(1) the contract goals, as determined by the State agency in the solicitation or bid, are to be provided by one or more certified minority and/or women-owned business enterprises;

(2) the contractor submits a utilization plan which only partially satisfies the contract goals set forth in the solicitation, but is supported by the contractor's documented good faith efforts to submit a utilization plan as requested;

(3) the contractor is a joint venture, teaming agreement, or other similar arrangement, with a certified minority or women-owned business enterprise whose value added or participation is equal to the percentage of the contract goals set forth in the solicitation;

(4) the contractor submits a mentor-protege agreement acceptable to the agency, which does not meet the goals set forth in the solicitation, but reflects an investment by the mentor in the protege roughly equal to the difference between the contract goals set forth in the solicitation and the percentage of value added participation provided by the protege.

(d) The notice of deficiency regarding the utilization plan shall include the following information:

(1) a statement that the contract shall not be awarded until a utilization plan has been approved or a waiver granted;

(2) a specific request for the reasons why any certified minority or women-owned business enterprise was not selected to perform the scope of work which the State agency has determined can be reasonably structured by the contractor into subcontract(s) or other component(s) for purposes of complying with the State contract certified enterprise goal(s); and

(3) any other facts relevant to the utilization plan.

(e) Unless otherwise specified in the information, instructions or requirements and any addenda provided to contractors for purposes of soliciting bids or proposals, a contractor must provide a State agency with a written remedy in response to a notice of deficiency within seven (7) business days of its receipt.

(f) If the contractor's written remedy to a notice of deficiency is not timely provided or if the written notice is found by the State agency to be inadequate such a failure to remedy the deficiency may be grounds for disqualification for non-responsiveness or the State agency may notify the contractor and request the contractor to submit a waiver form within five (5) business days. Failure to file the waiver form in a timely manner may be grounds for disqualification of the bid for non-responsiveness.

(g) Failure of the contractor to comply with the requirements of section 142.6(e) may result in the disqualification of the contractor under this Part.

(h) The time requirements of this section shall apply unless otherwise agreed to in writing by the State agency and the contractor.

(i) If a contractor changes its utilization plan after submission, it shall be required to notify the State agency in writing of such change and obtain approval from the State agency in accordance with this section and section 142.8 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 142.6

Added, 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