N.Y.
Executive Law Section 822
Workforce participation goals
1.
The director, in consultation with the department, shall develop aspirational goals for the utilization of minority group members and women in each construction trade, profession, and occupation.(a)
Aspirational goals for the utilization of minority group members and women must set forth the expected participation of minority group members and women in each construction trade, profession, and occupation and shall be expressed as a percentage of the total hours of work to be performed by each trade, profession, and occupation based on the availability of minority group members and women within each construction trade, profession, and occupation.(i)
The aspirational goals shall set forth separate levels of expected participation by men and women for each minority group, and for Caucasian women, in each construction trade, profession, and occupation.(ii)
The director may establish aspirational goals for the expected participation of minority group members and women for municipalities where the director deems feasible and appropriate.(iii)
The director shall, in establishing the aspirational goals, consider the findings of the most recent disparity study and any relevant data published by the United States Census Bureau.(b)
The director shall update the aspirational goals on a periodic basis, no less than biannually.2.
State agencies shall, for each invitation for bids, request for proposals, or other solicitation that will result in the award of a state contract, set forth the expected degree of workforce participation by minority group members and women.(a)
Each workforce participation goal established by a state agency shall set forth the expected level of participation by minority group members and women in the performance of each trade, profession, and occupation required in the performance of the contract.(b)
Goals for the participation of minority group members and women shall set forth separate goals for each of the following groups in each construction trade, profession, and occupation:(i)
Black men;(ii)
Black women;(iii)
Hispanic men;(iv)
Hispanic women;(v)
Native American men;(vi)
Native American women;(vii)
Asian men;(viii)
Asian women;(ix)
Caucasian women.(c)
In establishing workforce participation goals, state agencies shall consider factors including, but not limited to:(i)
the findings of the most recent disparity study;(ii)
any relevant data published by the United States Census Bureau; and(iii)
if applicable, any aspirational goal established by the division.(d)
In any case, where a state agency establishes a workforce participation goal on an invitation for bids, request for proposals, or other solicitation that will result in the award of a state contract for construction that deviates from the aspirational goal for work or service in the county or municipality in which the work or service will be performed, the state agency shall document numerical evidence demonstrating that the application of the aspirational goal would not be practical, feasible, or appropriate.3.
Every contractor responding to an invitation for bids, request for proposals, or other solicitation that will result in the award of a state contract subject to workforce participation goals pursuant to this section shall agree to make a good faith effort to achieve such workforce participation goal or request a waiver of such goal.(a)
A contractor that certifies that it will make a good faith effort to achieve a workforce participation goal shall provide with its response to the applicable invitation for bids, request for proposals, or other solicitation:(i)
A certification stating that the contractor will make a good faith effort to achieve the applicable workforce participation goal and will contractually require any subcontractors to the contractor to make a good faith effort to achieve the applicable workforce participation goal in any subcontracted work;(ii)
The level of anticipated participation by minority group members and women as employees to the contractor, or, if the state agency has specifically indicated that such documentation is not required as part of the response to the invitation for bids, request for proposals, or other solicitation, a date certain for the submission of such documentation after the award of the state contract;(iii)
A list of all subcontractors anticipated to perform work on the state contract and the level of anticipated participation by minority group members and women as employees to each subcontractor, or, if the state agency has specifically indicated that such documentation is not required as part of the response to the invitation for bids, request for proposals, or other solicitation, a date certain for the submission of such documentation after the award of the state contract; and(iv)
Such other information as the contracting state agency shall require.(b)
A contractor that requests a waiver of a workforce participation goal shall provide with its response to the applicable invitation for bids, request for proposals, or other solicitation:(i)
Numerical evidence setting forth why the achievement of the workforce participation goal is not practical, feasible, or appropriate in light of the construction trades, professions, and occupations required to perform the work of the state contract;(ii)
Documentation of the contractor’s efforts, and any efforts by subcontractors to the contractor, to promote the inclusion of minority group members and women in construction trades, professions, and occupations required in the performance of the state contract;(iii)
The level of anticipated participation by minority group members and women in each of the construction trades, professions, and occupations required in the performance of the work of the state contract;(iv)
A list of all subcontractors anticipated to perform work on the state contract and the level of anticipated participation by minority group members and women as employees to each subcontractor; and(v)
Any other relevant information evidencing that the contractor’s achievement of the workforce participation goal would not be practical, feasible, or appropriate.4.
A state agency may not award a state contract to a contractor unless the contractor has (i) certified that it will make a good faith effort to achieve the applicable workforce participation goal and provided documentation of the workforce anticipated to perform the work of the state contract or (ii) submitted a waiver request which the state agency deems to reflect the maximum feasible participation of minority group members and women in each of the construction trades, professions, and occupations required in performance of the work of the state contract.(a)
In the event that a contractor submits a certification or waiver request that is accepted by the state agency, the state agency shall establish in the state contract the expected level of participation by minority group members and women in each of the construction trades, professions, and occupations required in performance of the work of the state contract, require that the contractor make good faith efforts to achieve such workforce participation goals, require that the contractor require any subcontractors to make a good faith effort to achieve the applicable workforce participation goal in any subcontracted work.(b)
In the event that a contractor fails to submit a certification, waiver request, or any other information required by the state agency, or the state agency determines that a contractor’s waiver request does not demonstrate that the applicable workforce participation goal is impractical, unfeasible, or inappropriate, the state agency shall notify the contractor of the deficiency in writing and provide the contractor five business days to remedy the noticed deficiency. A state agency may reject any bid or proposal of a contractor that fails to timely respond to a notice of deficiency or to provide documentation remedying the deficiency to the satisfaction of the state agency.(c)
Where failure to remedy any notified deficiency in the workforce utilization plan is a ground for disqualification, that issue and all other grounds for disqualification shall be stated in writing by the contracting state agency. The director shall establish via regulation, rules for state contracting agencies aimed at the measurement, reduction and elimination of erroneous business disqualifications including a process affording a contractor notice and an opportunity to be heard related to such disqualifications. * NB Repealed December 31, 2024
Source:
Section 822 — Workforce participation goals, https://www.nysenate.gov/legislation/laws/EXC/822 (updated Jan. 17, 2020; accessed Oct. 26, 2024).
