Diversity Compliance

Practice Area

A 2010 disparity study commissioned by the New York State Department of Economic Development concluded that Minority & Women-Owned Business Enterprises (MWBE) were utilized in New York state contracting at rates far lower than their availability would indicate. Of the $33.3 billion spent by the state between 2004 and 2008, only 5% was awarded to MWBEs. New York state is committed to correcting this disparity by creating a level playing field for MWBEs to ensure they are awarded a “fair share” of contracts by state agencies and authorities.

On January 5, 2011, in his first State of the State address, New York Governor Andrew M. Cuomo directed State agencies to expand their MWBE support. He cited that over half the 1.9 million business entities in the State are owned by women or minorities, and that the vast majority of these companies are small businesses who are critical drivers to the State’s economy. To ensure that MWBEs have fair opportunity to earn business from the State, Governor Cuomo directed State agencies to double the current MWBE participation goal from 10 to 20 percent, and ease bonding restrictions that these businesses will face. He also pledged to expand the Owner-Controlled Insurance Program model to expand opportunities for small businesses.

Harris Beach Diversity Compliance attorneys have extensive experience counseling state agencies and authorities to provide a deeper understanding of their MWBE requirements and helping businesses and contractors maximize their opportunities in New York state through MWBE procurements, supplier diversity initiatives, and diversity compliance.

Our services include:

• Helping state agencies and authorities understand their diversity compliance requirements and implement best practices for meeting MWBE goals
• Counseling contractors and businesses on MWBE procurement, supplier diversity initiatives, and diversity compliance
• Helping businesses develop effective diversity compliance strategies internally and assisting with maximizing procurement opportunities
• Assisting businesses in forming partnerships, joint ventures, and alliances with MWBEs for enhanced procurement opportunities
• Helping businesses draft compliance policies and procedures
• Reviewing and drafting contracts for compliance

Article 15-A History

In July 1988, Executive Law Article 15-A authorizing the creation of an Office (now Division) of Minority and Women’s Business Development to promote employment and business procurement opportunities on state contracts for minorities and women was signed into law. This statute requires that all state agencies establish employment and business participation goals for minorities and women.

Article 15-A applies to state contracts in excess of $25,000 for labor, services, supplies, equipment, and/or materials, or any combination thereof, provided to the contracting agency. It also applies to total expenditures of more than $100,000 ($25,000 for subcontracts) by a contracting agency or the owner of a state-assisted housing project in return for the acquisition, construction, demolition, replacement, major repair, renovation, or improvements of real property. Recent amendments now define state contracts to include leases of real property involving construction, demolition, replacement, and major repairs or renovation. Previously, the law was not adequately enforced and did not significantly increase business opportunities on state contracts for MWBEs as originally intended.

MWBE Services for State Agencies and Authorities

Under recently enacted legislation, every New York state agency and authority is responsible for establishing measures and procedures which ensure that MWBE firms are given the opportunity for “maximum feasible participation” in the performance of state contracts. Also, as amended in 2010, state agencies and authorities must collect and analyze MWBE utilization plans, monitor contractors’ EEO compliance, and include in every contract a provision stating that any contractor who fails to comply with MWBE participation requirements can be found liable for liquidated damages.

Section 313 of Article15-A requires state agencies to notify contractors of any deficiencies in their MWBE utilization plans. As recently amended by Program Bill #229, Section 313 now requires all state agencies to post contractor utilization plans and any waivers of compliance approved by the agency on their web sites. Section 313 also mandates that each state agency and authority structure their procurement procedures made to MWBE firms in a manner consistent with the findings of the 2010 disparity study with the overall combined agency goal for MWBE firm utilization of 28.92%.

Harris Beach attorneys have a history of helping state and local agencies and authorities fully understand their diversity compliance requirements and implement best practices for meeting MWBE goals. Our attorneys have worked with a diverse array of New York state agencies and authorities including the New York State Department of Economic Development, New York State Energy Research and Development Authority, Dormitory Authority for the State of New York, and the Empire State Development Corporation. Our attorney team includes the former executive director of the New York State Ethics Commission, who has considerable experience addressing compliance issues for state agencies and businesses.

MWBE Services for Businesses

To maximize their opportunities, it is essential that businesses understand all MWBE procurement, supplier diversity initiatives, and compliance requirements. For many businesses that have been successful in the past, new alliances and joint ventures with MWBEs will be critical in maintaining compliance with state procurement regulations related to diversity. Along with requirements for businesses to submit MWBE utilization plans for each state contract, provisions of the Procurement Lobbying Law have created numerous new procedures for companies seeking contracts with the state.

Our attorneys routinely help Minority and Women-Owned Businesses achieve MWBE certification from the Empire State Development Corporation’s Division of Minority & Women’s Business Development to become eligible for additional procurement opportunities as well as local procurement entities for municipalities. Our extensive experience in government procurement, economic development, compliance, construction law, litigation, and other areas, has also proven invaluable to businesses seeking MWBE opportunities. We can educate management and corporate boards (if applicable) on what the new rules are and help businesses develop strategies and policies to be effective in this new era of accountability and equal opportunity. Where appropriate, we can assist businesses in forming partnerships and alliances, as well as draft compliance policies and procedures, and review contracts for compliance.