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The Division of Minority and Women's Business Development

(“DMWBD” or the “Division”)

MWBE Operations Primer

October 22, 2018

Located within the New York State Department of Economic Development, the mission of the Division

of Minority and Women’s Business Development (“DMWBD” or the “Division”) is to promote equality

of economic opportunities for Minority and Women-owned Business Enterprises (“MWBEs”) and to

eliminate barriers to their participation in state contracting. The Division supplements New York State’s

economic leadership with expertise and resources that increase access to information and opportunities

for minority and women-owned businesses throughout the State.

The key objectives of DMWBD:

• To encourage and assist state agencies that are engaged in contracting activities in maximizing

MWBE participation on state contracts.

• To review applications by businesses seeking certification as MWBEs and to maintain a

directory of certified MWBEs.

• To promote the business development of MWBEs through education and outreach to agencies

and MWBEs.

New York State Executive Law Article 15-A § 310-318 (“Article 15-A”) establishes obligations for the

Division, state agencies, and contractors in order to enhance opportunities for MWBEs in New York

State contracting. The objective of Article 15-A is to promote equitable access to economic

opportunities for MWBEs by eliminating barriers to their participation in New York State contracting.

Primer

The purpose of the MWBE Primer is to provide agencies and authorities a tool that aides in the day-to-

day administration of the MWBE program and general guidance regarding compliance with Article 15-

A. It is absolutely not a substitute for your DMWBD Agency Services Analyst or any of the

directives, resources, outreach, and assistance provided by the Division. Along with other guidance

from the Division, the Primer is intended to be used as a reference for current stakeholders and should

be distributed to any agency or authority procurement staff involved with the development,

management, or reporting of expenditures pursuant to state contracts. MWBE liaisons, senior

management, legal counsel, and procurement staff should become familiar with the MWBE Primer.

The Primer is a living document that will be edited and updated via bulletins. DMWBD Agency

Services Analysts, outreach and assistance provided by the Division, and periodic webinar trainings

supplement the ability to administer your MWBE program. Therefore, the Division recommends that

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your agency contact the Division when there are questions related to the administration of your MWBE

program. Questions relating to internal procedures, enforcement, and New York Law governing

procurements should be resolved, to the extent possible, by Agency and Authority staff and appropriate

legal counsel prior to submitting requests for guidance to the MWBE Division.

State Contract Threshold Amounts

Article 15-A provides contract dollar value thresholds for purchases of commodities/services greater

than $25,000, and for construction contracts greater than $100,000 (See also the definition of “State

Contract” in § 310(13) of Article 15-A). Procurements that meet or exceed the minimum thresholds

MUST be assessed for MWBE goals.

Agencies and Authorities are encouraged to promote MWBE participation on contracts that do not

exceed the legal threshold, if feasible, to provide opportunities to certified MWBEs that are qualified.

A. Contract Categorization and Goal Setting

1. Agency-Specific Annual Goal Setting (Goal Plans)

Contract Categorization and Agency-Specific Goal Setting is the process of determining which agency

procurements constitute State Contracts under Article 15-A and then establishing an appropriate goal for

MWBE participation on the procurements. The agency-specific goal is presented to the Division in the

form of the agency master goal plan or annual goal plan updates as described in 5 NYCRR § 141. This

section enumerates a number of criteria agencies and authorities must consider in developing their

agency-specific goal. However, agencies are responsible for good faith effort compliance with Article

15-A based on the specific procurement needs and practices of each agency.

Agency-specific goals are estimates based on the projected amount of the agency budget that will be

available for MWBE utilization. The procedure for submitting goal plans in the New York State

Contract System is described later in section C (page 11). Though the utilization goal is an estimate,

agencies should be aware that goals must be set appropriately and as accurately as possible. Agencies

who fail to reach 60% of the annual MWBE goal set forth in the goal plan will need to take part in the

remedial process required by 5 NYCRR § 141.8.

In developing agency-specific annual goals, agencies and authorities should take into account the

findings of the 2016 MWBE Disparity Study. 1 Agencies and authorities should develop specific

strategies to appropriately award contracts to MWBE prime contractors in proportion to their respective

availability, as identified in the 2016 MWBE Disparity Study, for construction contracts valued at

$1,400,000 or less, construction-related services contracts valued at $2,000,000 or less, non-

construction-related services contracts valued at $500,000 or less, and commodities contracts valued at

$275,000 or less.

1 The most recent Disparity Study is available at: https://esd.ny.gov/doing-business-ny/mwbe/mwbe-reports

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Generally, procurements are classified as follows: a) exempted from MWBE goal setting, b) excluded

from MWBE goal setting or c) eligible for MWBE goal setting. The agency-specific goal is the

estimated total amount of anticipated MWBE utilization (“numerator”) divided by the total agency

budget that is eligible for MWBE goal assessment (“denominator”) (i.e. total agency budget less

exemptions and exclusions).

Proper annual goal assessment must also include a good faith estimate of MWBE availability for

participation on procurements included in the available budget for goals. Program and procurement staff

should participate in the process to identify, if possible, scopes of services where MWBEs are available

to participate in state contracts. Goal plans must include appropriate and detailed descriptions of

exemptions and exclusions. Any changes to the exemptions and exclusions MUST be approved by the

Division. Contact your Agency Services Analyst for agency specific questions.

2. Exemptions

Exemptions are procurements which are not eligible for MWBE goal setting and are reflected as such on

Master Goal Plans and Master Goal Plan Updates. Therefore, any MWBE utilization received on exempt

contracts should not be reported in quarterly utilization submissions in the numerator unless the full

expenditure is also reported in the denominator. Exempt contracts or expenditures, for which utilization

is later identified by an agency, must be removed from the list of exempted and excluded contracts with

approval from the Division prior to taking utilization credit.

Examples of exemptions are as follows:

1. Wages, benefits, and other employee expenditures

2. Debt service

3. Travel reimbursement

4. Utilities

5. Sole source contracts (subject to there being no MWBE available to participate as sub-contractor

when subcontracting is appropriate)

6. Postage

7. Telephones

8. Operating transfers

9. Certain rentals and repairs

10. Special departmental charges (i.e. unemployment insurance and tuition reimbursement)

11. Insurance Premiums (excluding broker fees)

12. OGS Services

a. Centralized Services (e.g. agency charge backs) are exempt.

b. OGS Centralized Contracts are not automatically exempt (e.g. IT, Office Supplies,

Vehicle Repair & Maintenance, Heavy Equipment, etc.). Agencies must determine

whether specific OGS centralized contracts have MWBE goals. Should agency staff

believe that an OGS centralized contract with MWBE goals should be

exempted/excluded, sufficient documentation must be provided to the Division for review

and approval prior to the contract being added to the exempted and excluded list in the

goal plan.

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3. Exclusions

Exclusions are contracts that do not have subcontracting opportunities or no availability of certified

MWBEs to perform or provide specific goods or services. Agencies must be able to provide to the

Division appropriately detailed documentation establishing that no MWBEs are able to participate on

the procurement in question. This includes researching MWBE availability in the New York State

MWBE Directory, and consulting with Agency Services Analysts and ESD Business Development Unit

before a contract can be identified as an exclusion. In cases where a contract is awarded by a means

other than a Request for Proposals, including, but not limited to, discretionary purchases and

single/source contracts, the Division will grant exclusions only if MWBEs are solicited to participate as

prime contractors or no MWBEs are available to participate as prime contractors. If a contract is deemed

an exclusion, it should not be included in the MWBE available budget for goal setting section of the

goal plan.

If unanticipated MWBE utilization occurs during the performance of an excluded contract it can be

reported with the quarterly MWBE submission. However, any MWBE utilization occurring on an

excluded contract must be reported along with the accurate contract expenditure (denominator), and the

contract must be taken out of exclusions in the goal plan. This process MUST be facilitated by the

designated Agency Services Analyst for the Agency or Authority.

4. In-year Exclusions/Exemptions

In-year exclusions/exemptions are contracts that were not reported as such in the Master Goal Plan or

Master Goal Plan Update, and present no subcontracting opportunities, or there is currently no

availability of certified MWBEs to perform or provide specific goods or services.

In cases where a contract is awarded by a means other than a Request for Proposals, including, but not

limited to, discretionary purchases and single/sole source contracts, the Division will grant in-year

exclusions only if MWBEs are solicited to participate as prime contractors or no MWBEs are available

to participate as prime contractors. If a contract is deemed an in-year exclusion it must be reported to the

Division (contact your ESD Agency Services Analyst for instructions) and if approved, it must be added

to a revised Master Goal Plan or Master Goal Plan Update. In-year exclusions are only submitted on a

contract-by-contract basis for approval by the Division. Contracts with achieved and reported MWBE

utilization are not eligible for being excluded.

When requesting an In-Year-Exclusion (IYE), please submit an MWBE In-Year-Exclusion Request

Form (See page 22). Please ensure you provide additional documentation (Good Faith Effort) to

substantiate your request.

5. Contract Goal Setting

Contract goal setting is the process of determining the percentage and dollar value of MWBE

participation that may be placed on qualified MWBE procurements. All procurements above the Article

15-A threshold for state contracts, unless exempted or excluded, must be assessed for MWBE goals

(Exec. L. § 315).

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When assessing procurement for MWBE goals, an agency or authority should consider:

a. The contract and subcontract scope(s) of work.

b. The potential subcontract opportunities available in the prime contract.

c. The relevant availability data contained within the disparity study with respect to the scope of the

contract and potential subcontracting opportunities2.

d. The number and types of certified minority and women-owned business enterprises found in the

directory of certified minority and women-owned businesses available to perform the State

contract work3.

e. The geographic location of the contract performance.

f. The extent to which geography is material to the performance of the contract.

g. The ability and availability of certified MWBEs outside of the geographic location of contract

performance, notwithstanding the regional location of the certified enterprise, to perform on the

State contract.

h. The total dollar value of the work required by the State contract in relation to the dollar value of

the subcontracting opportunities.

i. The relationship of the monetary size and term of the State contract to the monetary size and term

of the project for which the State contract is awarded.

j. The agency’s annual agency-specific goal established pursuant to 5 NYCRR § 141.2.

Determining MWBE availability should also include working with program and procurement staff to

break out the scope of services and relative dollar amounts of each potential subcontracting opportunity

and assess the availability of MWBEs who can provide the specified scopes of services.

All State Contracts and RFPs with goals of less than 30% MWBE participation4, but greater than zero,

must be forwarded to the Executive Chamber at MWBE.Waivers@ny.gov for review prior to being

released (via pre-RFP waiver form). The submission must include sufficient documentation to justify the

goal that has been proposed.

If the goal assessment results in a “zero” MWBE goal because no subcontracting opportunities exist or

there is currently no availability of certified MWBEs to perform or provide specific goods or services,

then the contract may become an in-year exclusion, but only if approval is received from the Division.

2 The availability of MWBEs reflected in the 2016 MWBE Disparity Study should not be applied to any contract without

further analysis into contract-specific MWBE availability.

3 https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp?TN=ny&XID=4687

4 The aspirational statewide MWBE participation goal for FY2018-19 is 30%. State Contract goals should be based on

documented good faith effort estimates obtained by utilizing the criteria listed in Primer Section A.5 – Goal Setting and

associated NYS MWBE regulations

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B. Utilization Rules

1. Waivers

MWBE waivers occur at or after the time of award of a contract and result in a reduction or elimination

of the MWBE goals that were established by the agency.

a. A waiver shall not be granted unless the contractor has provided documented Good Faith

Efforts (“GFE”).

b. GFE are the actions all contractors must demonstrate via appropriate documentation to certify

they have performed their due diligence to solicit MWBE participation in support of their state

contract MWBE goals (5 NYCRR § 142.8).

c. Waivers must be sought even if the overall MWBE goal is met but either the “M” or the “W”

component of the MWBE goal is not met in part or in full. For example, if a 30% goal is placed

on the contract and the breakdown is 15% M and 15% W, and during or at the end of the contract

the actual utilization received is 20% M and 10% W, then the agency or authority is to seek a

waiver from the Executive Chamber for the 5% shortfall from the W category even though the

overall 30% goal was met.

d. If after the MWBE goal has been assigned to a contract, a change in such goal is requested by a

contractor which lowers the MWBE goal, an MWBE waiver request form must be completed by

the contractor (see below for sample form). The agency or authority must assess the contractor’s

documented good faith efforts in trying to meet the original goal. Once the agency determines

that the contractor’s GFE is adequate, only then should the agency submit the contractor’s waiver

request with the proper GFE documentation to the Executive Chamber at

MWBE.Waivers@ny.gov for review. Waiver requests may not be granted unless the GFEs are

deemed adequate and approval is given by the Executive Chamber. All expenditures on waived

contracts should be reported to ESD in the MWBE quarterly submission.

e. As a matter of due diligence, when MWBE waivers are requested by prime contractors, agencies

or authorities should contact the Division’s MWBE Business Development Unit or their assigned

Agency Services Analyst to assist in determining whether there are certified MWBEs available to

meet their procurement goals.

At a minimum, the agency or authority must refer to the Directory for NYS Certified MWBEs

(https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp?TN=ny&XID=4687) to

determine if other appropriate certified MWBEs are available. It is highly recommended that a

statewide search of the Directory for NYS Certified MWBEs be performed prior to making the

request.

f. All MWBE utilization (numerator) and associated expenditures (denominator) on contracts that

received a waiver must be included in the quarterly utilization submissions.

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g. If the agency or authority determines that a waiver request has adequate documented GFE, and

via their own due diligence determines the waiver request to be appropriate, then

MWBE.Waivers@ny.gov is to be utilized when sending MWBE goal waiver requests to the

Executive Chamber for review, or when sending a request for an MWBE goal of less than 30

percent (for contracts not yet in effect).

h. Agencies are required to report waivers on a quarterly basis and as otherwise directed by the

Division.

2. Commercially Useful Function (CUF)

a. Contractors and agencies should report MWBE utilization only in proportion to the commercially

useful function (“CUF”) performed by MWBEs on each State Contract. CUF must be evaluated

on a contract-by-contract basis by the appropriate agency project management staff. Whether

utilization credit is appropriate should be determined by the hosting agency/authority staff via

proper vetting of proposed MWBEs during utilization plan review, and contract monitoring

during the life of the procurement. CUF analysis must always take into account whether the

services an MWBE is identified as performing pursuant to a utilization plan are consistent with

the commodity code classifications assigned to the MWBE by the Division, whether payments to

the MWBE are proportionate to the actual services or goods provided by the MWBE on the state

contract, and the CUF criteria set forth in 5 NYCRR § 140.1(f).

b. Questions regarding commodity codes should be addressed to the Certification Unit of the

Division.

3. Federally-Funded Contracts are contracts with funding provided by the federal government,

which make up all or part of the contract.

a. Contracts which must be assessed for Disadvantaged Business Enterprise (“DBE”) goals cannot

also be assessed for New York State MWBE goals. No utilization should be reported on

quarterly MWBE submissions to the Division from these contracts. Contracts with DBE goals

should be included on the Master Goal Plan or the Master Goal Plan Update as exemptions or

exclusions as appropriate.

b. 100% federally funded projects without DBE goals must be assessed for New York State MWBE

goals. The general rules of goal setting apply, including those for exemptions, exclusions, and

waivers. These contracts should be included in the Master Goal Plan or Master Goal Plan Update

as excluded.

NOTE: Expenditures (including MWBE utilization) from 100% federally funded contracts are not to be

submitted to the Division with the MWBE quarterly utilization submissions. Instead, the agency or

authority is required to maintain and track such data internally. The Division will provide a

supplemental reporting mechanism in the future for the reporting of MWBE utilization from 100%

federal funded contracts.

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c. Contracts containing both state and federal funds not subject to DBE goals (“blended funds”)

must be assessed for goals and any utilization must be reported in quarterly MWBE submissions

with the associated expenditures. However, if the blended funds consist of any funding subject to

DBE goals, then as stated above, the contract is NOT to be assessed for New York State MWBE

goals and MWBE utilization should not be reported to the Division.

d. Agencies and authorities may not report more than 100% MWBE utilization on any contract or

report MWBE utilization for two or more tiers of contracting covering the same scope of work.

For example, assume that an agency enters into a $500,000 contract with an MWBE prime

contractor, and that the MWBE prime contractor subcontracts 30% of the work, or $150,000, to

an MWBE subcontractor. In this case, the agency may report a maximum of 100% of the value

of the contract, or $500,000. The agency may not report both the agency’s payments to the prime

contractor and the prime contractor’s payments to the subcontractor, as the resulting sum of

$650,000 would reflect two tiers of utilization for the same scope of work and would exceed

100% of the value of the agency’s contract.

NOTE: In utilization reports the amount of utilization allocated to each MWBE should be reflected

proportionally. MWBE Prime contractor utilization should be 70% of the contract expenditure and the

MWBE subcontractor should be allocated 30%. Non-MWBE subcontractors should not reduce the

utilization credit given MWBE prime allocation of credit.

4. Grants must be assessed for MWBE goals (waivers, exemptions, and exclusions may apply).

5. Legislative items from the NYS Legislature must be assessed for MWBE goals (waivers,

exemptions, and exclusions may apply).

6. Preferred Sources are entities given first preference in State procurement as identified in the

State Finance Law. They include The Division of Correctional Industries, the Industries for the

Blind of NYS, Inc., the NYS Industries for the Disabled, and the Office of Mental Health's

Special Employment Program, and are generally exempted from MWBE goal setting. Preferred

Source expenditures should be reported in the quarterly utilization submission.

7. Not-for-profit funds that are earmarked for not-for-profit procurement should be assessed for

goals with the following provisos:

a. Personal services, rent, and utilities are exempted from the total contract value or grant amount if

the grantee is a not-for-profit.

b. To the extent the goods or services being procured for the agency or authority by way of the not-

for-profit is being self-performed by the not-for-profit (i.e. not procured in the open market), then

MWBE goals do not apply. If a not-for-profit will self-perform $60,000 of a $100,000 contract,

then only $40,000 need be assessed for MWBE goals (which may also be adjusted for personal

services, rent, and utilities as stated above).

c. After exempting personal services, rent, utilities, and self-performance, the entire remainder of

the funds are to be assessed for goals. For example, if the funding is $100,000 of which $80,000

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comprises personal services, rent, utilities, and self-performance, then the remaining $20,000

should be assessed for goals. Therefore, if it is determined via goal setting that a 30% goal is

appropriate for the procurement, then it is 30% of $20,000 and quarterly MWBE utilization

submission should be reported accordingly.

d. Exemptions, exclusions, and waivers may also apply. For example, the agency or authority must

seek a reduction in goal approval from the Executive Chamber for the portion of the contract not

subject to the MWBE goal, or if the MWBE goal to be placed on the contract is below 30%.

e. Contact your Agency Services Analyst if you have questions regarding not-for-profit goal

setting.

f. Procurements open to vendors other than not-for-profits or a mix of not-for-profits and for-profit

entities may not utilize the not-for-profit rule. This is true even if a not-for-profit is ultimately

awarded the procurement. The not-for-profit rule applies only to awards for which only not-for-

profits may participate.

8. Discretionary Purchases (per NYS Finance Law 163(6)), allows state agencies to procure

services and commodities from MWBEs without a formal competitive process up to $200,0005.

• The ESD Business Development Unit can assist in identifying firms to meet agency’s

needs.

• All discretionary purchases must be reported on a quarterly basis in the most recent

format provided by ESD details.

• Agency staffs are reminded that all procurement above $25,000 for services that do not

utilize MWBE discretionary authority (NYS Finance Law § 163(6)) must still assessed

for MWBE availability.

• When reporting discretionary purchases on the quarterly integrated reporting form, please

only report discretionary purchases that were utilized to obtain MWBE utilization.

9. Article 15-A Thresholds - Whether or not procurement exceeds the Article 15-A thresholds

($100k for construction, $25k for services and commodities), any utilization credit reported on a

contract must be reported with the total contract expenditure also included in the “denominator.”

Agencies should contact the appropriate Agency Services Analyst to discuss any related issues if

necessary.

5 Authorities have similar discretion under their respective enabling statutes. Please refer to such statutes for specific

discretionary purchasing thresholds, which may differ from those for state agencies.

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10. Broker-Supplier MWBE Utilization Credit

a. The Division’s policy for applying MWBE utilization credit on vertical and horizontal

construction contracts that were awarded on or after 4/1/16 is as follows:

i. Construction Supplier - 60% credit: Firms that sell goods out of their revolving inventory.

Generally, suppliers will have a NAICS code beginning with 423 or 424, or a NIGP code

that does NOT begin with the number “9.”

Should a firm appear to be a supplier without these codes, agency or authority staff

should contact the Division’s Certification Unit to determine whether the firm is a

supplier. UTILIZATION CREDIT MAY NOT BE REPORTED UNDER ANY

CIRCUMSTANCES FOR WORK PERFORMED BY A NYS CERTIFIED MWBE FOR

WHICH THAT MWBE IS NOT CODED TO PERFORM.

ii. Construction Manufacturers’ Representatives/Brokers - only the amount of commission:

Any firms that are listed as brokers or manufacturers’ representatives (NAICS code

425120) and not specifically as suppliers fall in this category.

iii. Manufacturer - 100% credit: Manufacturers that produce and distribute the item

themselves

** Construction contracts in effect/awarded prior to 4/1/16 may be counted for credit using the same

percentages as in the past (100% for Suppliers in any industry, 25% for Brokers in any industry).

b. Non-Construction Broker-Supplier MWBE Utilization Credit (this applies to non-vertical or

horizontal construction expenditures only) – ESD’s current policy for applying MWBE

utilization credit on non-construction contracts is as follows:

i. Manufacturer/Supplier – 100% credit: Manufacturers that produce and distribute the item

themselves. The same NAICS and NIGP coding method from above are used to classify

suppliers and manufacturers of commodities (NAICS beginning with 423 or 424 or NIGP

codes NOT beginning with “9”).

ii. Supplier – 100% credit: Firms that sell goods out of their revolving inventory.

iii. Manufacturers’ Representatives/Brokers – 25% utilization credit. Any firms that are listed

as brokers or manufacturers’ representatives (NAICS code 425120) and not specifically

as suppliers fall in this category.

NOTE: A supplier who is properly coded as such may not be performing a CUF if they are only

brokering supply orders for a contract or type of commodity they do not routinely keep in inventory.

When in doubt as to which coded category (supplier, broker, manufacturer, etc.) a certified MWBE falls

into, please contact ESD’s Certification unit or call your ESD Agency Services Analyst. Remember - a

vendor can be a broker and a supplier for different commodities. As such, review must be done on

a product level not just the beginning coded numbers.

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C. Reporting in the New York State Contract System

The New York State Contract System (“NYSCS”), (https://ny.newnycontracts.com) provides a

comprehensive online information management system to track and report on procurement contracts and

expenditures with certified MWBE firms. Quarterly MWBE utilization reports and goal plans are

submitted to the Division via the New York State Contract System (“NYSCS”). Agencies subject to

Article 15-A are required to use the NYSCS system for MWBE reporting to the MWBE Division. The

primary users of the system are MWBE liaisons, procurement officers, and others as determined by the

respective agencies and authorities. The system consists of four (4) modules:

1. Goal Plan Module

2. Utilization Reporting Module

3. Contract Compliance Module (“CCM”)

4. Statewide Utilization Management Plan Module (“SUMP“)

NYCS contains guidance manuals on the above modules for staff and vendors, as well as training

classes. The New York State Contract System’s resource page

(http://www.resourcecenter.newnycontracts.com) also contains valuable information and resources on

the usage of all the modules. New users should contact their ESD Agency Services Analyst for

instructions on how to obtain a user name and password.

1. Goal Plan Module

State agencies and authorities are required to prepare and submit to the Division a Master Goal Plan or

an Annual Master Goal Plan Update which contains projected MWBE goals and actions to meet the

requirements of Article 15-A. Goal Plans are due January 15th of each year. Each Plan should describe

the procedures the agency or authority plans to implement, and the action they will take to comply with

the requirements of Article 15-A and the associated regulations. Master Goal Plans are submitted every

4 years6 and Goal Plan Updates are submitted each year between Master Goal Plans submission. Each

year the Division’s Executive Director provides a template with instructions on the approved submittal

process.

a. A goal plan provides a snapshot of an agency/authority’s projected (aspirational) fiscal year

expenditures, personnel, processes, and procedures intended to meet or increase their

participation of certified MWBEs. Agencies should be detailed and descriptive in listing their

exemptions and exclusions. For further instructions agencies and authorities should consult with

their assigned Agency Services Analyst.

b. Agencies are required to reflect how they plan to reach their goal during the fiscal year. This

should include the goal breakdown and an estimated percentage of how they will reach the goal

in the four industry categories (Commodities, Construction, Construction Consultants, and

Services/Consultants).

6 The next Master Goal Plan is due January 15, 2019, with yearly Master Goal Plan updates due in between Master Goal

Plans.

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c. Goal Plans should also include an agency overview, a description of the procurement strategy, a

sample of the MWBE boilerplate language, a copy of the MWBE organization chart, MWBE

outreach efforts, and MWBE standardized forms.

2. Utilization Reporting Module

Article 15-A requires a submission of statistical MWBE utilization and expenditure detail report to the

MWBE Executive Director on a quarterly basis during the fiscal year.7

a. MWBE utilization reports are due at the end of the quarter on the fifteenth (15th) day, or first

business day thereafter. The reported data constitutes a summarization of the total numbers and

dollar values of expenditure activities and the total dollar participation by MWBEs, including

percentages against those activities.

• Q1 due: July 1 (must be submitted to the Division no later than July 15)

• Q2 due: October 1 (must be submitted to the Division no later than October 15)

• Q3 due: January 1 (must be submitted to the Division no later than January 15)

• Q4 due: April 1 (must be submitted to the Division no later than April 15)

b. Data entered into the Utilization Reporting Module includes:

i. Total number of transactions.

ii. Total dollar expended within quarter.

iii. Total dollar expended with MBEs and WBEs (detail section).

iv. All certified vendors utilized during the reporting period.

c. Agencies and authorities cannot report expenditures for MWBE credit if a firm is not yet

certified. Agencies and authorities select vendors who are not NYS certified MWBEs at their

own peril because doing so may result in the agency or authority not receiving MWBE utilization

credit for utilization received from the uncertified firm.

Once a firm is certified only expenditures starting from the date the application was submitted

can be counted for MWBE credit (and only within that fiscal year). If the firm does not get

certified, the agency will not receive credit for its use (i.e. using vendors going through

recertification and the associated credit).

d. NYSCS provides Utilization Reporting Module training manuals, which include the Statewide

Financial System (“SFS”) import guide and the Quarterly Utilization Report Bulk Upload Guide.

e. Agencies and authorities with questions regarding the utilization module should contact their

respective Agency Services Analysts and consult the NYSCS online tutorials referenced herein.

7 NYS fiscal year begins April 1st and ends March 31st.

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3. Contract Compliance Module (“CCM”)

CCM allows the agencies and authorities to manage common contract data, such as contract dollar

value, prime contractor, and relevant dates. It also manages data specific to the agency’s and authority’s

contract compliance tracking and reporting needs. This data includes goal types (i.e. MBE or WBE),

goal percentages, funding sources, subcontractor awards, and other relevant fields.

The CCM record contains a large amount of data and is linked to other NYSCS system records of prime

contractors, subcontractors, and buyers. Additionally, CCM provides a contract payment tracking

mechanism. This allows the agencies and authorities to discern MWBE payment participation at a

glance and track payment progress on the contract.

a. Though expenditures above the legal threshold must be placed in CCM ($100,000 for

construction and $25,000 for commodities), the Division encourages agencies and authorities to

input ALL expenditures in CCM, even those below the dollar value thresholds to allow for robust

reporting. CCM allows you to track the following:

i. All contracts within Article 15-A thresholds, as well as those below Article 15-A

thresholds

ii. Contracts with MBE and/or WBE goals

iii. OGS centralized contracts

iv. Sole and Preferred Source

v. Contracts to Not-For-Profits

vi. Grants

vii. Exemptions, Exclusions, and Waivers

b. Agencies are strongly urged to fully utilize CCM and to upload contract documents, including

utilization plans, amendments, extensions, prime contractor reports, proof of payment documents

(canceled checks, etc.), and other relevant documents associated with the contract. When these

documents are centrally located, staff from different areas of the procurement process having

MWBE responsibilities will have more access to information necessary for Article 15-A

compliance.

4. Statewide Utilization Management Plan Module (“SUMP”)

SUMP allows agencies and authorities to electronically manage their utilization plan submission process

for new contracts and renewing contracts with MWBE goals. The agency or authority creates a proposal,

a very brief RFP that describes the project and MWBE goal, which is then forwarded to the winning

contractor. The contractor must submit a utilization plan, with subcontractor information and their

acceptance, rejection, or edit of the MWBE goal. If the contractor changes the goal, a waiver request and

GFE documentation should be included with their submission back to the agency or authority. The

agency or authority has the option to approve, conditionally approve or deny the submitted utilization

plan. All contractors are to be encouraged to submit utilization plans electronically.

a. Reference materials available to assist agencies and authorities in meeting SUMP requirements

can be found on The New York State Contract System’s resource page

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(http://www.resourcecenter.newnycontracts.com). It contains valuable information and

resources, including a training video that describes the process flow from creating a proposal to

the final approval of a utilization plan. In addition, there are screen shots that outline steps for

agency/authority staff and vendors. Recorded webinars are available for Vendor SUMP and

Agency SUMP Training on the ESD website.

b. If agencies and authorities accept and approve utilization plans that include firms that are

pending certification, they do so at their own risk as certification is not guaranteed.

c. Contact your Division Agency Services Analyst to check certification status, fast track

applications and complete expedite request.

D. Procurement Guidelines and Procedures (Internal)

Agencies and authorities are required to have internal procurement guidelines, processes, and procedures

tailored to meet the requirements of Article 15-A and associated regulations. Please contact your

Division Agency Services Analyst if you have questions regarding your MWBE processes or

procedures.

E. Diversity Practices

Diversity practices are the efforts of contractors to include New York State Certified MWBEs in their

business practices. Agencies and authorities must score all best value procurements (RFPs, RFIs, etc.)

expected to result in an award of more than $250,000 for diversity practices, except where doing so

would not be practical, feasible, or appropriate. Determinations that scoring for diversity practices would

not be practical, feasible, or appropriate must be documented in writing.

Agencies and authorities should use the most current diversity practices questionnaire and scoring

matrix to score for diversity practices, unless specifically authorized to do otherwise by the Division.

When scoring for diversity practices, agencies and authorities should award no more than 10% of the

technical score available to respondents to the procurement based on diversity practices.

Agencies and authorities should submit quarterly data on their use of diversity practices in their

procurements as an attachment to their quarterly reporting pursuant to section C (page 10) of this primer.

F. Workforce Utilization Reports (Including EEO Reporting)

Agencies and authorities must collect workforce utilization reports from prime contractors, and any

subcontractors, on each of their state contracts. Workforce utilization reports must include appropriate

Standard Occupational Classification job classifications for all employees performing work on the

contract on an hourly basis. Workforce utilization reports should only be collected on electronic forms

approved by the Division.

Agencies should transmit their workforce utilization reports no later than the 15th day following the end

of each quarter. Workforce utilization reports should be submitted as directed by the Division, and NOT

as attachments to quarterly reports described in section C (Page 10) of this primer.

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G. Executive Order 162 – Ensuring Pay Equity by State Contractors

Governor Cuomo’s Executive Order 162 requires state contractors to disclose data on the gender, race,

ethnicity, job title, and salary of employees performing work on state contracts issued and executed on

or after June 1, 2017.

Contracts and procurements subject to Executive Law Article 15-A and issued by New York State

Agencies and Authorities on or after June 1st are required to include a provision identifying this

additional requirement and require prime contractors to require the same information to be submitted by

any of their subcontractors on the state contract.

Reporting requirements are as follows:

i. Agency to the Division:

• Quarterly (submitted with the agency’s quarterly utilization report).

ii. Primes and Subcontractors to the Agency:

• Quarterly for commodities, construction, and services contracts.

Contact your DMWBD Agency Services Analyst for additional information related to the

implementation of EO 162, and to obtain the most up-to-date versions of reporting forms, instructions,

and a list of exemptions please see the below hyperlink:

https://esd.ny.gov/doing-business-ny/mwbe/mwbe-executive-order-162

H. Programmatic Accountability

Agencies and authorities are required to monitor State Contracts for programmatic compliance with

Article 15-A and report to the DMWBD any breaches thereof (Section 315). Each agency and authority

is required to fully investigate any breaches of Article 15-A or its MWBE program and report such

breaches to the Division. Breaches or complaints of breach may be reported to the DMWBD MWBE

Compliance Officer at contractcompliance@esd.ny.gov. The Division may, on occasion, review an

agency’s compliance with Article 15-A.

1. Project Compliance Monitoring

All agencies and authorities are responsible for monitoring all eligible projects for compliance

with Article 15-A and to report violations to the Division. Active monitoring of reporting from

prime contractors for accuracy, CUF, and general Article 15-A compliance should include

appropriate agency staff. Agencies should have a pre-determined, internal protocol for managing

MWBE utilization on contracts.

2. Utilization Plans

The utilization plan must reflect the MWBEs a prime actually utilizes on a contract as

subcontractors and suppliers; those MWBEs must also be able to provide a CUF in their

contractual role. Utilization plans are a part of the contractual obligations of the prime contractor

and should be actively monitored by the contracting agency. Failure to submit an acceptable

utilization plan should result in the contracting agency/authority issuing a notice of deficiency. If

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the deficiency is not remedied, the contracting agency may disqualify the prime and select

another vendor.

Once a contract is executed and work begins, any changes to MWBE firms on the utilization plan

must be approved by the contracting agency. Should a prime contractor need or want to remove

and/or replace an MWBE firm listed on the utilization plan, the agency must be notified and

approve of the change prior to a firm being added or removed. Proper notice of this policy should

be integrated into the finalization of eligible contracts, so primes are aware of this requirement.

Failure to notify an Agency or Authority of relevant changes can be the basis for a violation,

sanctions, or both if deemed appropriate by the contracting agency or authority.

3. Violations and Sanctions

When utilization reporting on a contract indicates that the goals may not be achieved, a notice of

deficiency must be sent to the prime contractor by the contracting agency. If a contractor is

nonresponsive to the deficiency notice, the determination of whether a violation of Article 15-A

has occurred is the responsibility of the contracting agency and agency legal counsel.

For primes, violations and penalties can arise in the utilization plan submission process or as a

result of a lack of sufficient effort to include MWBEs on the contract. Should a prime vendor

willfully and intentionally fail to comply with the MWBE program requirements, agency staff

must immediately determine the extent of the violation and appropriate remedies. This process is

the responsibility of the contracting agency/authority and should include appropriate agency staff

(e.g., senior management, legal counsel, MWBE staff, etc.).

To properly address potential violations of Article 15-A, management, procurement staff, and

agency legal counsel should work to address the issue appropriately. Violations and associated

penalties or other actions must be reported to the Division quarterly or as otherwise directed by

the Division.

I. Webinars

Webinars are available on the ESD website for the following topics: Discretionary Spend, Goal Plan

Submission, SUMP for Vendors and SUMP for Agency/Authorities. Please contact your assigned

Agency Services Analyst if you are interested in viewing the webinars.

J. Contact/Resources

• Certification questions: mwbecertification@esd.ny.gov

• Searching the MWBE Directory:

o Contact your assigned ESD Agency Services Analyst or

o ESD’s Business Development Unit for guidance: mwbebusinessdev@esd.ny.gov

• Internal MWBE compliance questions: contractcompliance@esd.ny.gov

• Questions regarding SUMP: sump@esd.ny.gov

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K. NYS Pre-Recorded Agency and Authority MWBE Webinar Trainings

DMWBD has recorded previous trainings conducted for NYS Agencies and Authorities. The list below

includes trainings that are currently available. These trainings are updated periodically. Contact your

Agency Services Analyst to request a copy of any of the trainings below:

• Leveraging Discretionary Purchases in New York State

• Not-for-Profit MWBE Reporting

• Procurement Ad Posting on the NYS Contract Reporter

• Providing an overview of the budget form, submission and process for approvals from the

Chamber

• Searching for MWBE Firms in the NYS MWBE Directory

• Statewide Utilization Management Plan (SUMP) for Agencies and Authorities

• Understanding the New Coding System for MWBEs

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REQUEST FOR WAIVER FORM (POST AWARD)

INSTRUCTIONS: SEE PAGE 2 OF THIS ATTACHMENT FOR REQUIREMENTS AND DOCUMENT SUBMISSION

INSTRUCTIONS

Offeror/Contractor Name: Federal Identification No.:

Address:

Solicitation/Contract No.:

City, State, Zip Code:

M/WBE Goals: MBE % WBE %

By submitting this form and the required information, the officer or/contractor certifies that every Good Faith Effort has

been taken to promote M/WBE participation pursuant to the M/WBE requirements set forth under the contract.

Contractor is requesting a (check applicable):

√ Type of Waiver: Total Partial

1. MBE Waiver – A waiver of the MBE Goal for this procurement is requested.

2. WBE Waiver – A waiver of the WBE Goal for this procurement is requested.

3. Waiver Pending ESD Certification (Check here if subcontractors or suppliers of Contractor are not certified

M/WBE, but an application for certification has been filed with Empire State Development.) Date of such filing

with Empire State Development: ______________________

____________________________________ _________________________ PREPARED BY

(Signature) Date:

SUBMISSION OF THIS FORM CONSTITUTES THE OFFEROR/CONTRACTOR’S ACKNOWLEDGEMENT

AND AGREEMENT TO COMPLY WITH THE M/WBE REQUIREMENTS SET FORTH UNDER NYS

EXECUTIVE LAW, ARTICLE 15-A AND 5 NYCRR PART 143. FAILURE TO SUBMIT COMPLETE AND ACCURATE

INFORMATION MAY RESULT IN A FINDING OF NONCOMPLIANCE AND/OR TERMINATION OF THE

CONTRACT.

Name and Title of Preparer (Printed or Typed):

Telephone Number: Email Address:

Submit with the bid or proposal or if submitting after award

submit to:

***** FOR DMWBD USE ONLY *****

REVIEWED BY: DATE:

Waiver Granted: □ Yes □ No

MBE: □ WBE: □

□ Total Waiver □ Partial Waiver

□ ESD Certification Waiver □ * Conditional

□ Notice of Deficiency Issued

*Comments:

M/WBE 104 (Revised 1/15)

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REQUIREMENTS AND DOCUMENT SUBMISSION INSTRUCTIONS

When completing the Request for Waiver Form please check all boxes that apply. To be considered, the

Request for Waiver Form must be accompanied by documentation for items 1 – 11, as listed below. If box

#3 has been checked above, please see item 11. Copies of the following information and all relevant

supporting documentation must be submitted along with the request:

1. A statement setting forth your basis for requesting a partial or total waiver.

2. The names of general circulation, trade association, and M/WBE-oriented publications in which you

solicited certified MWBEs for the purposes of complying with your participation goals related to this

contract.

3. A list identifying the date(s) that all solicitations for certified M/WBE participation were published in any

of the above publications.

4. A list of all certified MWBEs appearing in the NYS Directory of Certified Firms that were solicited for

purposes of complying with your certified M/WBE participation levels.

5. Copies of notices, dates of contact, letters, and other correspondence as proof that solicitations were made

in writing and copies of such solicitations, or a sample copy of the solicitation if an identical solicitation

was made to all certified MWBEs.

6. Provide copies of responses to your solicitations received by you from certified MWBEs.

7. Provide a description of any contract documents, plans, or specifications made available to certified

MWBEs for purposes of soliciting their bids and the date and manner in which these documents were

made available.

8. Provide documentation of any negotiations between you, the Offeror/Contractor, and the MWBEs

undertaken for purposes of complying with the certified M/WBE participation goals.

9. Provide any other information you deem relevant which may help us in evaluating your request for a

waiver.

10. Provide the name, title, address, telephone number, and email address of offeror/contractor’s

representative authorized to discuss and negotiate this waiver request.

11. Copy of notice of application receipt issued by Empire State Development (ESD).

NOTE: Unless a Total Waiver has been granted, the Offeror/Contractor will be required to submit all

reports and documents pursuant to the provisions set forth in the Contract, as deemed appropriate by

AGENCY, to determine M/WBE compliance. M/WBE 104 Instructions (1/15)

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MWBE Goal Reduction Request (Pre-RFP)

Contract No.:

Facility (If Applicable):

Project Description:

Contract Value:

Contract Term:

Agency Contact Information

Name:

Email:

Phone Number:

Description:

Reason for Request:

Recommended Goal: MBE% WBE%

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Agency/Authority letterhead

MWBE Waiver Request:

Date:

Contract No.: Facility (If Applicable):

Project Description:

Contract Value:

Contract Term:

Agency Contact Information

Name:

Email:

Phone Number:

Description:

Reason for Request:

Original Goal:

MBE% WBE%

Recommended Goal:

MBE% WBE%

Explanation of Good Faith Efforts:

[Agency/Authority] has reviewed and accepted the attached MWBE utilization plan (UP), good faith

effort documentation and waiver request from the above noted contractor/service provider.

Attachments include:

1. Utilization plan & Waiver Review 2. Good Faith Effort Documentation 3. Notice of Deficiency- if applicable 4. Any other documents that may be helpful in the review of this waiver

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MWBE in Year Exclusion Request

Contract/PO No: Facility (if applicable):

Date of Request: Contract Award Value:

Agency Goal Plan Exclusion total:

(Prior to Request) Contract Term:

Agency contact information: Agency/Authority: Staff name: Title: Email: Phone number:

Multi Year term spend break out (if

applicable):

FY 1718: $

FY 1819: $

FY 1920: $

Description:

Current Goal: %

Reason behind original goal:

Was a pre-RFP Waiver requested?

If so was it approved/denied:

Reason for Request (include summary of GFE):

Please include any additional details and/or attach supporting documentation as needed.