[HISTORY: Adopted by the Legislature of the County of Monroe 6-8-2021 by L.L. No. 6-2021. Amendments noted where applicable.]
This chapter shall be known as the "Gantt's Law."
A.
This Legislature hereby finds and determines that a need exists within
the County of Monroe to recognize and encourage the growth of business
enterprises that are owned and operated by women and minorities.
B.
This Legislature also finds business enterprises that are owned and
operated by women and minorities have struggled to achieve equitable
representation in procurement by the County of Monroe.
C.
This Legislature also finds that previous policies enacted by the
County of Monroe regarding business enterprises that are owned and
operated by women and minorities only pertained to construction activities.
D.
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.
E.
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.
F.
Therefore, the purpose of this chapter is to ensure that minority-
and women-owned business enterprises have sufficient opportunity to
participate both directly and indirectly in contracting opportunities
with Monroe County.
The purpose of this chapter is to promote and encourage the
utilization of minority- and women-owned business enterprises in procurement
by the County of Monroe and establish clear guidelines for what constitutes
a minority- and women-owned business enterprise, create a directory
of minority- and women-owned business enterprises, expand the use
of minority- and women-owned business enterprises in all areas of
County procurement, institute reporting guidelines, conduct training
for minority- and women-owned business enterprises, and set new goals
for the use of minority- and women-owned business enterprises in County
procurement.
As used in this chapter:
A business verified as a minority- or women-owned business enterprise pursuant to § 26-5 of this chapter and/or a business certified by New York State pursuant to Article 15-a of the New York State Executive Law.
The Diversity Action Plan Advisory Committee established
in accordance with Resolution 212 of 2020.
An individual, a business enterprise, including a sole proprietorship,
a partnership, a corporation, or any other 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.
Any County department; or any agency, division, board, office,
elected official, commission or bureau of the County or of any County
department.
Purchase contracts, including contracts for service work, let
by the County in excess of $20,000.
Contracts for public works let by the County in excess of $60,000.
Contracts for professional services let by the County in excess
of $20,000.
For the purposes of chapter: 1) the term "service" shall not
include banking relationships, the issuance of insurance policies
or contracts, or contracts with the County for the sale of bonds,
notes or other securities, and 2) the term "contract" shall not include
contracts or other agreements with a municipal corporation, school
district, district corporation, board of cooperative educational services,
utility, not-for-profit corporation, or publicly traded company.
The Director of Diversity, Equity and Inclusion — Chief
Diversity Officer.
A United States citizen or permanent resident alien who has
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 descent of either Indian or Hispanic origin,
regardless of race;
Native American or Alaskan native persons having origins in
any of the original peoples of North America;
Asian and Pacific Islander persons having origins in any of
the Far East countries, South East Asia, the Indian subcontinent or
the Pacific Islands.
A business enterprise, including a sole proprietorship, partnership,
limited-liability company, 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 independently owned and operated.
The Monroe County Department of Diversity, Equity and Inclusion.
An agreement between a contractor and any individual or business
enterprise, including a sole proprietorship, partnership, limited-liability
company, or 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
certified businesses, 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,
limited-liability company, 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 the State of New
York and independently owned and operated.
A.
The Director, in consultation with the Committee, shall promulgate
rules and regulations providing for the establishment of a County-wide
certification program, including rules and regulations governing the
approval, denial, or revocation of any such certification.
B.
For the purposes of this chapter, the Office shall be responsible
for verifying businesses applying for or certified under the County-wide
certification program as being owned, operated, and controlled by
minority group members or women and for certifying such verified businesses.
The Director shall prepare a directory of certified businesses for
use by the County and contractors in carrying out the provisions of
this chapter. The Director shall periodically update the directory
and make it publically available on the County's website. In
the event a business certified under the County-wide certification
program ceases to qualify as a minority- and/or women-owned business,
the Office shall revoke its certification and send written notice
of such revocation to the business.
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.
D.
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 the Committee.
The business enterprise shall serve a copy of such request upon the
Director and the Committee by personal service or by certified mail,
return receipt requested. 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 Committee 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 Office. 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 Committee 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.
The Office shall hold an annual workshop for potential minority-
and women-owned business enterprise applicants and certified businesses
for the purpose of educating and informing participants about the
County's procurement processes and reviewing upcoming procurement
opportunities, including but not limited to the Capital Improvement
Plan. The workshop shall include all relevant information to allow
potential bidders to understand, navigate, and compete in the County's
procurement process.
The County hereby sets the following goals effective as of January
1, 2022, for ensuring the full and equitable participation of minority-
and women-owned business enterprises:
A.
The County shall have a participation goal of 12% of the total value
of County contracts in a given year for minority-owned business enterprises
that are certified businesses;
B.
The County shall have a participation goal of 3% of the total value
of County contracts in a given year for women-owned business enterprises
that are certified businesses; and
C.
The above stated goals shall coincide with the County's good
faith efforts to utilize local labor and create local jobs through
County contracts.
A.
All County contracts and all documents soliciting bids or proposals
for County contracts shall contain or make reference to the following
provisions as a condition of entering into a County contract:
(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 chapter, 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 County, 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; and
(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 County shall consider
whether compliance by a contractor or subcontractor with the requirements
of any federal and state law concerning equal employment opportunity
effectuates the purposes of this section. The County 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 County shall waive the applicability of this
section to the extent of such duplication or conflict.
A.
The Director, in consultation with the Committee, 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 the County 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- and women-owned business enterprises
particularly with regard to such contracts. Nothing in the provisions
of this chapter shall be construed to limit the ability of any certified
business to bid on any contract.
B.
All requests for proposals, requests for qualifications, and expressions
of interest issued by the County for County contracts shall include
approach to minority- and women-owned business enterprise utilization
in the selection criteria, and shall state that minority- and women-owned
business enterprise utilization will be used as selection criteria
and rated in compliance with the Monroe County Department of Finance
- Division of Purchasing and Central Service's Procedure for
Service Contracts.
C.
In the implementation of this section, the County shall consider
whether compliance with the requirements of any federal or state law
concerning opportunities for minority- and women-owned business enterprises
effectuates the purpose of this section. The County 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 County may waive the applicability of this chapter
to the extent of such duplication or conflict.
A.
The Director, in consultation with the Committee, shall promulgate rules and regulations requiring that all contractors use best efforts to achieve participation in subcontracting, when applicable, by minority- and women-owned business enterprises in accordance with goals set by § 26-7 to enhance opportunity for minority- and women-owned businesses to reflect the percentage of minority- and women-owned businesses available to perform such work.
B.
The County shall administer the rules and regulations promulgated
by the Director, in consultation with the Committee, to ensure compliance
with the provisions of this section. Such rules and regulations shall
require that, when it is in the County's interest to permit subcontracting:
(1)
Contractors shall use best efforts to solicit active participation
by enterprises identified in the directory of certified businesses
provided to the County by the Director;
(2)
A contractor shall submit a utilization plan after bids are opened,
when bids are required, or in a contractor's response to an RFP;
(3)
In all cases, prior to the award of the County contract, the County
shall review the utilization plan submitted by the contractor within
a reasonable period of time, as established by the Director;
(4)
The County shall 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;
(5)
The contractor shall submit periodic compliance reports relating
to the operation and implementation of any utilization plan; and
(6)
Where certified businesses have been identified within a utilization
plan, a contractor shall use best efforts to utilize such certified
businesses at least to the extent indicated. The County may require
a contractor to indicate, within a utilization plan, what measures
and procedures it intends to take to comply with the provisions of
this chapter.
Without limiting other grounds for the disqualification of bids
or proposals on the basis of nonresponsiveness and/or nonresponsibility,
the County may disqualify the bid or proposal of a contractor as being
nonresponsive and/or nonresponsible for failure to provide a utilization
plan and/or remedy noted deficiencies in the contractor's utilization
plan within a period of time specified in regulations promulgated
by the Director, in consultation with the Committee, after receiving
notification of such failure and/or deficiencies from the County.
A.
Where it appears that a contractor, after making its best efforts,
cannot comply with a minority- and women-owned business enterprise
participation requirements set forth in a particular County contract,
a contractor may file a written application with the Director 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 participation of certified businesses. In implementing
the provisions of this section, the Director shall consider the number
and types of certified businesses 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
Director determines there is not a reasonable availability of contractors
on the list of certified businesses to furnish services for the project,
the Director may issue a waiver of compliance to the contractor.
B.
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 Director shall consider:
(1)
Whether the contractor has advertised in general circulation media,
trade association publications, and/or publications focused on minorities
or women, and in such event:
(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 County'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 § 26-5 of this chapter; 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.
C.
In the event that the Director fails or refuses to issue a requested
waiver to a contractor within 30 days of the application therefor,
or if the Director denies such application in whole or in part, the
contractor may file an appeal with the Committee, setting forth the
facts and circumstances giving rise to the contractor's appeal.
The contractor shall serve a copy of such appeal upon the Director
and the Committee by personal service or by certified mail, return
receipt requested. The Director shall be afforded an opportunity to
respond to the appeal in writing. The Committee shall render its decision
on the appeal within 30 days of being served with the appeal.
Upon receipt of a complaint that a contractor has violated this
chapter, including but not limited to a failure or refusal to comply
with minority- and women-owned business enterprise participation requirements
as set forth in a County contract, the Director shall send a notice
of such deficiency to said contractor setting forth the facts and
circumstances giving rise to the complaint. If the contractor fails
to cure or otherwise address the complaint within 15 days of receiving
notice thereof, the County shall have the right to cancel, terminate,
or suspend the contract in whole or in part, and/or seek any other
remedy afforded to the County in law or in equity.
The County Executive, or designee, shall file a report with
the County Legislature no later than April 1 of each year, which details
the levels of participation for certified businesses in County contracts
for the prior year. The report shall include the name of each County
contract, the total paid value for each contract, and total dollars
spent with minority and women-owned certified businesses, respectively.
If any clause, sentence, paragraph, section or chapter of this chapter shall be adjudged by any court of competent jurisdiction to be invalid, such determination shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or chapter thereof directly involved in the proceeding in which such adjudication shall have been rendered. This chapter shall not supersede any other state or federal laws, rules, or contractual obligations that exceed the goals set forth under § 26-7.
