City of Albany, NY
Albany County
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Table of Contents
Table of Contents
[Adopted 6-18-1984; amended in its entirety 4-1-2002 by Ord. No. 13-22-02]
It is hereby ordained and directed that the City of Albany by this article adopts and establishes a Minority- and women-owned Business Enterprise Program and Minority and Women Labor Utilization Plan. The policy, standards and procedures to be followed by the City of Albany and sanctions imposed under this article are set forth below.
It is the policy of the City of Albany that minority- and women-owned business enterprises shall have the maximum opportunity to participate in the performance of contracts let by the City and its several agencies and authorities. It is further the policy of the City of Albany and its several agencies and authorities that all contractors and subcontractors engaged on projects of the City or its several agencies or authorities shall utilize minority and women labor to the fullest extent possible. In the implementation of this policy, the City commits itself to a goal-oriented Minority- and women-owned Business Enterprise Program and a Minority and Women Labor Utilization Plan as set forth below.
For the purpose of this program, the following definitions shall govern the management and direct implementation of program guidelines for minority- and women-owned business enterprises (MWOBE) and the Minority and Women Labor Utilization Plan (MWLUP):
MINORITY- AND WOMEN-OWNED AND -CONTROLLED BUSINESS
An established, profit-making enterprise, firm or corporation owned, controlled and operated with a minimum of 51% of all vested ownership and management benefits held by citizens and/or permanent residents who are women or a member of one of the following groups: citizens and/or permanent residents identified as minority and defined as such by the United States Department of Commerce, United States Department of Labor:
A. 
Black persons not of Hispanic origin: persons having origins in any of the black racial groups of Africa.
B. 
Hispanic persons: persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture of origin, regardless of race.
C. 
Asians or Pacific islanders: persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent or the Pacific islands. This area includes, for example, China, Japan, Korea, the Philippine islands and Samoa.
D. 
American Indians or Alaskan natives: persons having origins in any of the original peoples of North America, and who maintain cultural identification through tribal affiliation or community recognition.
A. 
The minority or women ownership of such business is a profit-making venture engaging in and capable of continuous engagement in construction/construction-related activity and is organized as one of the following:
(1) 
Sole proprietorship.
(2) 
Partnership/joint venture: two minority owned; two women owned; or one minority-owned and one women-owned.
(3) 
Joint venture, minority/women, majority contractor (51% to 49% only).
(4) 
Corporation.
B. 
The minority or women owner(s) must possess the authority to direct daily business operations and enforce policies of the firm. Specifically, the minority or women owner(s) must exercise routine, ongoing management responsibilities, including but not limited to:
(1) 
Sharing in all benefits and liabilities in proportion to invested ownership percentage.
(2) 
Authorizing and processing payrolls and payables.
(3) 
The authorizing of all personnel actions, hiring, promotion and terminations.
A. 
The following standards shall be used by the City of Albany to establish criteria and to monitor the operation of a Minority- and Women-Owned Business Enterprise Program. The program requires the City to:
(1) 
Identify minority- and women-owned and -controlled business firms, corporations and establishments capable of engaging successfully in a competitive bid process for the procurement of construction and construction-related projects.
(2) 
Maintain a central directory of minority-and women-owned and -controlled firms for bid notification, referrals and for negotiating contracts and subcontracts with construction residential rehab projects.
(3) 
Discontinue and disqualify contractors and subcontractors when violations of policy and performance agreements occur.
B. 
Work performance standards. The MWOBE contractor/subcontractor:
(1) 
Is responsible for entering into all contractual agreements which generate contracts.
(2) 
Arranges for and supervises contract performance.
(3) 
Secures equipment, materials and crew (laborers) sufficient to complete projects.
(4) 
Provides bonding insurance and collateral as required for surety in contract performance.
(5) 
Authorizes payrolls, payments and reports as requested in routine compliance.
C. 
Prohibitions.
(1) 
Personnel transfers. An approved MWOBE subcontractor shall not include any enterprise whose principal officer, superintendent, foreman or any other similar supervisory-type personnel was in the employ of the low bidder (prime) during the period of time six months prior to the date of the bid announcement and extending to the date of the bid opening.
(2) 
Demonstration of independence. Minority and women ownership and control shall be real and continuing and shall not be created solely to take advantage of special programs provided for minority and women business development. Certification shall be denied businesses not controlled by minority and women business persons.
D. 
Suspect indicators. A nonminority or nonwomen firm may be considered as controlling or having the power to control a minority and women firm when one or more of the following circumstances are found to exist and it is reasonable to conclude that under the circumstances such nonminority or nonwomen firm is directing or influencing or has the power to direct or influence the operation of the minority or women firm:
(1) 
Interlocking management. Officers, directors, employees or principal stockholders of the nonminority or nonwomen firm serve as officers of the minority or women firm.
(2) 
Common facilities. The nonminority or nonwomen firm shares common office space and/or employees and/or other facilities with the minority or women firm.
E. 
Reports.
(1) 
The Albany MWOBE Officer shall annually submit a written report to the Common Council on or before April 1 of each year summarizing the previous year’s compliance with:
[Amended 1-24-2019 by Ord. No. 1.11.19]
(a) 
The standards set forth in Subsection A of this section;
(b) 
The number and types of contracts in which minority- and women-owned and -controlled business firms, corporations and establishments have participated; and,
(c) 
The attainment of the goals set forth in this article.
(2) 
Such report may also include recommendations designed to improve the administration and implementation of the program set forth in this article.
The contractor must develop and submit to the Albany MWOBE Officer, at initial bidding, a detailed schedule of MWOBE participation, including:
A. 
The names of MWOBE's intended to be used as subcontractors.
B. 
A description of the work each is to perform.
C. 
The dollar value of each proposed subcontract with an MWOBE.
D. 
Notice to subcontractors of their use of MWOBE's.
The contractors shall carry out this policy in the awarding of contracts and subcontracts to minority and women business enterprises to the fullest extent consistent with the efficient performance of this contract and shall consider using positive efforts to meet the applicable MWOBE participation goal. Such positive efforts shall include but not be limited to:
A. 
Attendance at preconstruction meetings scheduled by the City and its several agencies and authorities.
B. 
Advertising, subcontracting opportunities for MWOBE's in minority and women trade association newsletters and minority and women media. The bid due date and reasonable MWOBE response due date must be specified in the advertisement. At a minimum, the publication chosen must be distributed within reasonable proximity of the location of the construction project. The advertisement must be for specific subcontracts which are described in reasonable detail.
C. 
Notifying minority and women contractor associations located within the City of Albany of the available subcontracting opportunities. The notification must be by certified mail and should be received by the addressee associations in time to permit effective MWOBE participation. The MWOBE response due date must be specified in the notifications. The solicitation must be for specific subcontracts, and the work to be done must be described as accurately as possible and in reasonable detail.
D. 
Where technically feasible, segmenting the work to be subcontracted to accommodate the size and capabilities of available minority and women subcontracting.
E. 
Sending solicitation letters by certified mail inviting quotes or proposals from individual minority and women business enterprises. The solicitation letter must reference specifically segmented portions of work to be contracted. The portions of work must be described as specifically and accurately as possible. Inquiries for further details must be encouraged. The solicitation letter must be sent in a timely manner so as to allow minority and women firms sufficient opportunity to develop quotes or proposals for the work described. All solicitation letters shall include the bid date and a response due date for the information of the addressee.
F. 
Engaging in direct negotiations with an MWOBE whose proposal is deemed unreasonably high and rejected for that reason.
G. 
Informing its MWOBE subcontractors of change orders that may affect the MWOBE's subcontract.
Throughout the project, the contractor must:
A. 
Require each subcontractor under the contract to comply with the MWOBE requirement, if necessary to achieve the MWOBE goal.
B. 
Inform the Albany MWOBE Officer of any changes in its detailed schedule of MWOBE participation.
C. 
Maintain documentation that will demonstrate good faith efforts to retain MWOBE 's.
D. 
Make good faith efforts to replace an MWOBE subcontractor that is unable to perform successfully with another MWOBE.
E. 
Notify the Albany MWOBE Officer of any suspected instances of companies fraudulently claiming MWOBE status.
F. 
If possible, provide any needed technical assistance to MWOBE 's under contract.
G. 
If possible, aid proposed MWOBE subcontractors in obtaining necessary bonding.
H. 
Design payment schedules to minimize cash-flow problems faced by MWOBE 's.
I. 
Strive to attain a minority and women labor utilization plan of 25%.
[Amended 12-7-2020 by Ord. No. 24.101.20]
MWOBE eligibility status shall be renewed annually.
A. 
Contract record. The MWOBE firm shall have performed contracts in the trades area. Copies of such previous contracts shall be presented to the City in the MWOBE applications materials or present credentials of training or work history.
B. 
Location of business. The MWOBE firm shall maintain a business location designated by full street address and telephone service specific to the business requesting certification and contract negotiations.
C. 
Recordkeeping.
(1) 
The MWOBE firm shall present financial records, including a certified copy of the two previous years' profit and loss statement and balance sheet.
(2) 
The MWOBE firm shall make available to the City of Albany all financial bookkeeping records for review and verification by the City, upon request. The City reserves the right to audit the operations of the MWOBE firm for compliance verification and certification purposes.
A. 
All contractors are requested to maintain accurate and complete records to reflect the name of the MWOBE, individual contacted, description of the work to be done, quotation or proposal received (if any) and description of follow-up actions. In the event an interested MWOBE will not be utilized, the record of contact with that firm should include an explanation of the reason(s) why the firm will not be used. All contractors and subcontractors are requested to maintain accurate and complete records to reflect efforts to obtain maximum minority and women labor utilization.
B. 
Contractors will be required to maintain for three years such records as are necessary to determine compliance with their MWOBE obligations and to submit regular reports to enable the Albany MWOBE Officer to monitor this compliance.
If the contractor cannot meet the goal, the contractor must document to the Albany MWOBE Officer that all positive efforts have been made to achieve it. Failure to meet the goal or to document all positive efforts that have been made to achieve it may result in the City invoking sanctions against the contractor, including but not limited to:
A. 
Any legal or equitable remedy available to the City for breach of contract.
B. 
Withholding future payments under the contract involved.
C. 
Disqualification of the contractor from future contracting opportunities.
D. 
Cancellation of the contract and declaration of forfeiture of performance bond.
A. 
If any part of this article or its application to any persons or circumstances is adjudged by a court to be invalid or ineffectual, such judgment shall not affect the remainder of the article or its application to any other person or circumstance.
B. 
This article shall supersede all laws inconsistent with it to the extent of such inconsistency, but in all other respects shall be deemed supplemental to such laws.