[Adopted 3-14-2006 by L.L. No. 20-2006 (Ch. 143, Art. III,
of the 1985 Code)]
A.
This Legislature hereby finds and determines that a need exists within
the County of Suffolk to recognize and encourage the growth of business
enterprises that are owned and operated by women and minorities.
B.
This Legislature also finds that the County's economy will benefit
from the utilization by the County of business enterprises that are
owned and operated by women and minorities.
C.
This Legislature further finds that both the state and federal governments
have instituted programs that facilitate participation in government
contracts by business enterprises that are owned and operated by women
and minorities.
D.
Therefore, the purpose of this article is to ensure that minority-
and women-owned business enterprises have sufficient opportunity to
participate both directly and indirectly in contracting opportunities
with Suffolk County.
As used in this article, the following terms below shall have
the meanings indicated:
A business verified as a minority- or women-owned business enterprise pursuant to § 189-27 of this article or a business that has been certified as a service-disabled-veteran-owned business pursuant to Article 17-B of the New York Executive Law.
[Amended 4-24-2018 by L.L. No. 15-2018]
Any of the County entities enumerated in § 189-26 below which is a party or proposed party to a County contract.
An individual, a business enterprise, including a sole proprietorship,
a partnership, a corporation, a not-for-profit corporation, or any
other entity or party to a County contract, or a bidder in conjunction
with the award of a County contract or a proposed party to a County
contract.
Suffolk County, and shall include:
A written agreement or purchase order instrument providing for
a total expenditure in excess of $25,000, whereby a contracting department
is committed to expend or does expend funds in return for labor, services,
supplies, equipment, materials or any combination of the foregoing,
to be performed for or rendered or furnished to the contracting department
on the County's behalf; or
A written agreement in excess of $100,000 whereby a contracting
department 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 the purpose of this
section, the term "services" shall not include banking relationships,
the issuance of insurance policies or contracts, or contracts with
a contracting department for the sale of bonds, notes or other securities.
The Director of the Suffolk County Office of Minority Affairs.[1]
A United States citizen or permanent resident alien who is
and can demonstrate membership in one of the following groups:
Black persons having origins in any of the Black African racial
groups;
Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
Central or South American of either Indian or Hispanic origin, regardless
of race;
Native American or Alaskan native persons having origin in any
of the original peoples of North America; or
Asian and Pacific Islander persons having origin in any of the
Far East countries, Southeast Asia, the Indian Subcontinent, or the
Pacific Islands.
A business enterprise, including a sole proprietorship, partnership
or corporation, that is:
At least 51% owned by one or more minority group members;
An enterprise in which such minority ownership is real, substantial
and continuing;
An enterprise in which such minority ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise; and
An enterprise authorized to do business in the State of New
York and is independently owned and operated.
The Suffolk County Office of Minority Affairs.
A business enterprise, including a sole proprietorship, partnership,
limited-liability company or corporation, that is:
[Added 4-24-2018 by L.L.
No. 15-2018]
At least 51% owned by one or more service-disabled veterans;
An enterprise in which such service-disabled-veteran ownership
is real, substantial, and continuing;
An enterprise in which such service-disabled-veteran ownership
has and exercises the authority to control independently the day-to-day
business decisions of the enterprise;
An enterprise authorized to do business in this state and is
independently owned and operated;
An enterprise that is a small business which has a significant
business presence in the state, not dominant in its field, and employs,
based on its industry, a certain number of persons as determined by
the Director, but not to exceed 300, taking into consideration factors
which include, but are not limited to, federal Small Business Administration
standards pursuant to 13 CFR Part 121 and any amendments thereto;
and
Certified by the New York State Office of General Services.
An agreement providing for a total expenditure in excess
of $25,000 for the construction, demolition, replacement, major repair,
renovation, planning or design of real property and improvements thereon
between a contractor and any individual or business enterprise, including
a sole proprietorship, partnership, corporation, or not-for-profit
corporation, in which a portion of a contractor's obligation under
a County contract is undertaken or assumed, but shall not include
any construction, demolition, replacement, major repair, renovation,
planning or design of real property or improvements thereon for the
beneficial use of the contractor.
A plan prepared by a contractor and submitted in connection
with a proposed County contract. The utilization plan shall identify
certified businesses, if known, that have committed to perform work
in connection with the proposed County contract, as well as any such
enterprises, if known, which the contractor intends to use in connection
with the contractor's performance of the proposed County contract.
The plan shall specifically contain a list, including the name, address
and telephone number, of each certified business with which the contractor
intends to subcontract.
A business enterprise, including a sole proprietorship, partnership
or corporation, that is:
At least 51% owned by one or more United States citizens or
permanent resident aliens who are women;
An enterprise in which the ownership interest of such women
is real, substantial and continuing;
An enterprise in which such women ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise; and
An enterprise authorized to do business in this state and is
independently owned and operated.
[1]
Editor's Note: The definition of "disparity study," which
immediately followed this definition, was deleted 9-15-2011 by L.L.
No. 49-2011.
A.
All County contracts and all documents soliciting bids or proposals
for County contracts shall contain or make reference to the following
provisions:
(1)
The contractor shall not discriminate against employees or applicants
for employment because of race, creed, color, national origin, sex,
age, disability, sexual orientation, military status, or marital status,
and will undertake or continue taking steps to ensure that minority
group members and women are afforded equal employment opportunities
without discrimination. For purposes of this article, such steps shall
include recruitment, employment, job assignments, promotion, upgrading,
demotion, transfer, layoff, or termination and rates of pay or other
forms of compensation.
(2)
At the request of the contracting department, the contractor shall
request each employment agency, labor union, or authorized representative
of workers with which it has a collective bargaining or other agreement
or understanding to furnish a written statement that such employment
agency, labor union, or representative will not discriminate on the
basis of race, creed, color, national origin, sex, age, disability,
sexual orientation, military status, or marital status and that such
union or representative will affirmatively cooperate in the implementation
of the contractor's obligations herein.
(3)
The contractor shall state, in all solicitations or advertisements
for employees, that, in the performance of the County contract, all
qualified applicants will be afforded equal employment opportunities
without discrimination because of race, creed, color, national origin,
sex, age, disability, sexual orientation, military status, or marital
status.
B.
The contractor shall include the provisions of Subsection A of this section in every subcontract in such a manner that the provisions will be binding upon each subcontractor as to all work done in connection with the County contract.
C.
The provisions of this section shall not be binding upon contractors
or subcontractors in the performance of work or the provision of services
or any other activities that are unrelated, separate, or distinct
from the County contract as expressed by its terms.
D.
In the implementation of this section, the contracting department
shall consider compliance by a contractor or subcontractor with the
requirements of any federal and state law concerning equal employment
opportunity which effectuates the purposes of this section. The contracting
department shall determine whether the imposition of the requirements
of the provisions hereof duplicate or conflict with any such law,
and if such duplication or conflict exists, the contracting department
shall waive the applicability of this section to the extent of such
duplication or conflict.
A.
The Director shall promulgate rules and regulations that provide
measures and procedures to ensure that certified businesses shall
be given the opportunity for meaningful participation in the performance
of County contracts. Such rules shall require contracting departments
to identify those County contracts for which certified businesses
are most likely to be available and may set forth additional requirements
for outreach to minority businesses particularly with regard to such
contracts. Nothing in the provisions of this article shall be construed
to limit the ability of any certified business to bid on any contract.
B.
Contracting departments shall include or require to be included with
respect to County contracts for the acquisition, construction, demolition,
replacement, major repair or renovation of real property and improvements
thereon, requests for proposals (RFPs), and any other applicable County
contracts, such provisions as may be necessary to effectuate the provisions
of this article, including but not limited to provisions:
(1)
Requiring contractors to use best efforts to solicit active participation
by enterprises identified in the directory of certified businesses
provided to the contracting department by the Office; and
(2)
Requiring the parties to agree, as a condition of entering into such contract, to be bound by the provisions of § 189-24 of this article; provided, however, that no such provisions shall be binding upon contractors or in the performance of work or the provision of services that are unrelated, separate or distinct from the County contract as expressed by its terms, and nothing in this section shall authorize the Director or any contracting agency to impose any requirement on a contractor except with respect to a County contract.
C.
In the implementation of this section, the contracting department
shall consider compliance with the requirements of any federal or
state law concerning opportunities for minority-, women- and service-disabled-veteran-owned
business enterprises which effectuate the purpose of this section.
The contracting department shall determine whether the imposition
of the requirements of any such law duplicate or conflict with the
provisions hereof, and if such duplication or conflict exists, the
contracting department may waive the applicability of this article
to the extent of such duplication or conflict.
[Amended 4-24-2018 by L.L. No. 15-2018]
A.
The Director shall promulgate rules and regulations requiring that
all contractors use best efforts to achieve participation in subcontracting
by minority-owned business enterprises, women-owned business enterprises
and service-disabled-veteran-owned business enterprises in accordance
with goals set by the Director to enhance opportunity for minority-
and women-owned businesses and service-disabled-veteran-owned businesses
to reflect the percentage of minority-, women- and service-disabled-veteran-owned
businesses available to perform such work. The setting of such goals
shall in part be based on the findings and conclusions of the disparity
study completed in accordance with this article.
[Amended 4-24-2018 by L.L. No. 15-2018]
B.
Contracting departments shall administer the rules and regulations
promulgated by the Director to ensure compliance with the provisions
of this section.
(1)
Such rules and regulations shall require that:
(a)
A contractor submit a utilization plan after bids are opened,
when bids are required, or in a contractor's response to an RFP;
(b)
In all cases, prior to the award of a County contract, the contracting
department shall review the utilization plan submitted by the contractor
within a reasonable period of time, as established by the Director;
(c)
The contracting department notify the contractor in writing
within a period of time specified by the Director as to any deficiencies
contained in the contractor's utilization plan, as well as the permissible
time period within which to cure such deficiencies;
(d)
The contractor submit periodic compliance reports relating to
the operation and implementation of any utilization plan; and
(e)
A contracting department file a complaint with the Director in the event a contractor is failing or has failed to comply with the minority- and women-owned business enterprise participation requirements set forth in the County contract and no waiver has been granted pursuant to Subsections E and F of this section.
(2)
Such rules and regulations shall allow a contractor to:
[Amended 4-24-2018 by L.L. No. 15-2018]
C.
The rules and regulations promulgated pursuant to this section regarding
a utilization plan shall provide that where enterprises have been
identified within a utilization plan, a contractor shall use best
efforts to utilize such enterprise at least to the extent indicated.
A contracting department may require a contractor to indicate, within
a utilization plan, what measures and procedures he or she intends
to take to comply with the provisions of this article, but may not
require, as a condition of award of or compliance with a contract,
that a contractor utilize a particular enterprise in performance of
the contract.
D.
Without limiting other grounds for the disqualification of bids or
proposals on the basis of nonresponsibility, a contracting department
may disqualify the bid or proposal of a contractor as being nonresponsible
for failure to remedy noted deficiencies in the contractor's utilization
plan within a period of time specified in regulations promulgated
by the Director after receiving notification of such deficiencies
from the contracting department. Where failure to remedy any noted
deficiency in the utilization plan is a ground for disqualification,
that issue and all other grounds for disqualification shall be stated
in writing by the contracting department. Where the contracting department
states that a failure to remedy any noted deficiency in the utilization
plan is a ground for disqualification, the contractor shall be entitled
to an administrative hearing, on a record, involving all grounds stated
by the contracting department. Such hearing shall be conducted by
the appropriate authority of the contracting department to review
the determination of disqualification. A final administrative determination
made following such hearing shall be reviewable in accordance with
law.
E.
Where it appears that a contractor, after making its best efforts,
cannot comply with the minority-, women- and service-disabled-veteran-owned
business enterprise participation requirements set forth in a particular
County contract, a contractor may file a written application with
the contracting department requesting a partial or total waiver of
such requirements setting forth the reasons for the contractor's inability
to meet any or all of the participation requirements and an explanation
of the efforts undertaken, by the contractor to obtain the required
minority-, women- and service-disabled-veteran-owned business enterprise
participation. In implementing the provisions of this section, the
contracting department shall consider the number and types of minority-,
women- and service-disabled-veteran-owned business enterprises located
in the County, the total dollar value of the County contract, the
scope of work to be performed and the project size and term. Based
on such considerations, if the contracting department determines there
is not a reasonable availability of contractors on the list of certified
businesses to furnish services for the project, it shall issue a waiver
of compliance to the contractor. In making such determination, the
contracting department shall first consider the availability of other
business enterprises located in the County and shall thereafter consider
the financial ability of minority-, women- and service-disabled-veteran-owned
businesses located in the County to perform the County contract.
[Amended 4-24-2018 by L.L. No. 15-2018]
F.
For purposes of determining if a contractor has used best efforts
to comply with the requirements of this section or is entitled to
a waiver, the contracting department shall consider:
(1)
Whether the contractor has advertised in general circulation media,
trade association, and minority-focus, women-focus, veteran-focus
media, and in such event:
[Amended 4-24-2018 by L.L. No. 15-2018]
(a)
Whether or not certified businesses which have been solicited
by the contractor exhibited interest in submitting proposals for a
particular project by attending a pre-bid conference; and
(b)
Whether certified businesses which have been solicited by the
contractor have responded in a timely fashion to the contractor's
solicitations for timely competitive bid quotations prior to the contracting
department's bid date; and
(2)
Whether there has been written notification to appropriate certified businesses that appear in the directory of certified businesses prepared pursuant to § 189-27B of this article; and
(3)
Whether the contractor can reasonably structure the amount of work
to be performed under subcontracts in order to increase the likelihood
of participation by certified businesses.
G.
In the event that a contracting department fails or refuses to issue a requested waiver to a contractor within 30 days of the application therefor pursuant to Subsection E of this section, or if the contracting department denies such application in whole or in part, the contractor may file a complaint with the Director pursuant to § 189-24 of this article setting forth the facts and circumstances giving rise to the contractor's complaint together with a demand for relief. The contractor shall serve a copy of such complaint upon the contracting department by personal service or by certified mail, return receipt requested. The contracting department shall be afforded an opportunity to respond to such in writing.
H.
If, after the review of a contractor's minority-, women- and service-disabled-veteran-owned business utilization plan or review of a periodic compliance report and after such contractor has been afforded an opportunity to respond to a notice of deficiency issued by the contracting department in connection therewith, it appears that a contractor is failing or refusing to comply with the minority-, women- and service-disabled-veteran-owned business participation requirements as set forth in the County contract and where no waiver from such requirements has been granted, the contracting department may file a written complaint with the Director pursuant to § 189-24 of this article setting forth the facts and circumstances giving rise to the contracting department's complaint together with a demand for relief. The contracting department shall serve a copy of such complaint upon the contractor by personal service or by certified mail, return receipt requested. The contractor shall be afforded an opportunity to respond to such complaint in writing.[1]
[Amended 4-24-2018 by L.L. No. 15-2018]
[1]
Editor's Note: Former § 143-15, Disparity study,
which immediately followed this section, was deleted 9-15-2011 by
L.L. No. 49-2011.
A.
The Director shall promulgate rules and regulations providing for the establishment of a Countywide certification program, including rules and regulations governing the approval, denial or revocation of any such certification. Such rules and regulations shall include, but not be limited to, such matters as may be required to ensure that the established procedures thereunder shall at least be in compliance with the code of fair procedure set forth in § 73 of the New York Civil Rights Law. The department shall accept all businesses having or awaiting certification by a state agency.
B.
For the purposes of this article, the Office shall be responsible
for verifying businesses as being owned, operated, and controlled
by minority group members or women and for certifying such verified
businesses or may refer such process to an appropriate state agency.
The Director shall prepare a directory of certified businesses for
use by contracting departments and contractors in carrying out the
provisions of this article. The Director shall periodically update
the directory.
C.
Following application for certification pursuant to this section,
the Director shall provide the applicant with written notice of the
status of the application, including notice of any outstanding deficiencies,
within 30 days. Within 60 days of submission of a final completed
application, the Director shall provide the applicant with written
notice of a determination by the Office approving or denying such
certification and, in the event of a denial, a statement setting forth
the reasons for such denial. Upon a determination denying or revoking
certification, the business enterprise for which certification has
been so denied or revoked shall, upon written request made within
30 days from receipt of notice of such determination, be entitled
to a hearing before an independent hearing officer designated for
such purpose by the Director. In the event that a request for a hearing
is not made within such thirty-day period, such determination shall
be deemed to be final. The independent hearing officer shall conduct
a hearing and, upon the conclusion of such hearing, issue a written
recommendation to the Director to affirm, reverse or modify such determination
of the Director. Such written recommendation shall be issued to the
applicant and the Director. The Director, within 30 days, shall, by
order, accept, reject or modify such recommendation of the hearing
officer and set forth in writing the reasons therefor. The Director
shall serve a copy of such order and reasons therefor upon the business
enterprise by personal service or by certified mail, return receipt
requested.
D.
The Director shall maintain a directory of businesses that have been
certified as service-disabled-veteran-owned businesses by the New
York State Division of Service-Disabled Veteran's Business Developments.
[Added 4-24-2018 by L.L.
No. 15-2018]
Upon receipt by the Director of a complaint by a contracting
department that a contractor has violated the provisions of a County
contract which have been included to comply with the provisions of
this article, the Director shall attempt to resolve the matter giving
rise to such complaint within 30 days of receipt of the complaint.
If efforts to resolve such matter to the satisfaction of all parties
are unsuccessful, the Director shall immediately refer the matter
to the office of the County Attorney for appropriate action, including,
but not limited to, withholding payment due under the contract, or
cancellation, termination or suspension of the contract in whole or
in part.
This article shall apply to all County contracts and documents
soliciting bids or proposals for County contracts on or after the
effective date of this article.
