Affirmative Action Clauses
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Affirmative Action Clauses State University of New York
December 12, 2014 shall mean any agreement for a enterprise that is a small 1. DEFINITIONS. The total expenditure in excess of business pursuant to following terms shall be defined $25,000 providing for services, subdivision twenty of this in accordance with Section 310 including non-staffing section. of the Executive Law: expenditures, supplies or materials of any kind between a A firm owned by a minority STATE CONTRACT herein referred to as "State Contract”, State agency and a prime group member who is also a contractor, in which a portion of woman may be certified as a shall mean: (a) a written agreement or purchase order the prime contractor’s obligation minority-owned business under the State contract is enterprise, a women-owned instrument, providing for a total expenditure in excess of undertaken or assumed by a business enterprise, or both, business enterprise not and may be counted towards twenty-five thousand dollars ($25,000.00), whereby the State controlled by the prime either a minority-owned contractor. business enterprise goal or a University of New York (“University”) is committed to women-owned business WOMEN-OWNED BUSINESS enterprise goal, in regard to any expend or does expend funds in return for labor, services ENTERPRISE herein referred to Contract or any goal, set by an as "WBE", shall mean a agency or authority, but such including but not limited to legal, financial and other business enterprise, including a participation may not be counted sole proprietorship, partnership towards both such goals. Such an professional services, supplies, equipment, materials or an or corporation that is: (a) at enterprise's participation in a least fifty-one percent (51%) Contract may not be divided combination of the foregoing, to be performed for, or rendered owned by one or more United between the minority-owned States citizens or permanent business enterprise goal and the or furnished to the University; (b) a written agreement in resident aliens who are women; women-owned business (b) an enterprise in which the enterprise goal. excess of one hundred thousand dollars ($100,000.00) ownership interest of such women is real, substantial and MINORITY-OWNED whereby the University is committed to expend or does continuing; (c) an enterprise in BUSINESS ENTER- PRISE which such women ownership herein referred to as "MBE", expend funds for the acquisition, construction, demolition, has and exercises the authority to shall mean a business control independently the day-to- enterprise, including a sole replacement, major repair or renovation of real property and day business decisions of the proprietorship, partnership or enterprise; (d) an enterprise corporation that is: (a) at least improvements thereon; and (c) a written agreement in excess of authorized to do business in fifty-one percent (51%) owned this state and independently by one or more minority group one hundred thousand dollars ($100,000.00) whereby the owned and operated; (e) an members; (b) an enterprise in enterprise owned by an which such minority ownership University as an owner of a state assisted housing project is individual or individuals, is real, substantial and whose ownership, control and continuing; (c) an enterprise in committed to expend or does expend funds for the acquisition, operation are relied upon for which such minority ownership certification, with a personal net has and exercises the authority to construction, demolition, replacement, major repair or worth that does not exceed three control independently the day-to- million five hundred thousand day business decisions of the renovation of real property and improvements thereon for such dollars ($3,500,000), as adjusted enterprise; (d) an enterprise annually on the first of authorized to do business in project. January for inflation according this state and independently SUBCONTRACT herein to the consumer price index of owned and operated; (e) an referred to as "Subcontract”, the previous year; and (f) an enterprise owned by an individual or individuals, whose financial requirements set forth group members and women in its ownership, control and operation in the regulations. work force on State Contracts;(ii) are relied upon for certification, The Contractor shall state in all with a personal net worth that solicitations or advertisements does not exceed three million 2. TERMS. The parties to the for employees that, in the five hundred thousand dollars attached State Contract agree to performance of the State ($3,500,000.00), as adjusted be bound by the following Contract, all qualified applicants annually on the first of January provisions which are made a will be afforded equal for inflation according to the part hereof (the word employment opportunities consumer price index of the "Contractor" herein refers to any without discrimination; (iii) At previous year; and (f) an party other than the University: the request of the University the enterprise that is a small Contractor shall request each business pursuant to subdivision 1(a) Contractor and its employment agency, labor union, twenty of this section. Subcontractors shall undertake or or authorized representative of continue existing programs of workers with which it has a MINORITY GROUP affirmative action to ensure that collective bargaining or other MEMBER shall mean a United minority group members and agreement or understanding, to States citizen or permanent women are afforded equal furnish a written statement that resident alien who is and can employment opportunities such employment agency, labor demonstrate membership in one without discrimination. For union, or representative will not of the following groups: (a) these purposes, affirmative action discriminate, and that such union Black persons having origins in shall apply in the areas of or representative will any of the Black African racial recruitment, employment, job affirmatively cooperate in the groups; (b) Hispanic persons of assignment, promotion, implementation of the Mexican, Puerto Rican, Domini- upgrading, demotion, transfer, Contractor’s obligations herein. can, Cuban, Central or South layoff, or termination and rates of (d) Form 108 - Staffing Plan To American of either Indian or pay or other forms of ensure compliance with this Hispanic origin, regardless of compensation. Section, the Contractor shall race; (c) Native American or (b) Prior to the award of a submit a staffing plan to Alaskan native persons having State Contract, the Contractor document the composition of the origins in any of the original shall submit an equal proposed workforce to be utilized peoples of North America. (d) employment opportunity (EEO) in the performance of the Asian and Pacific Islander policy statement to the Contract by the specified persons having origins in any of University within the time frame categories listed, including ethnic the Far East countries, South established by the University. background, gender, and Federal East Asia, the Indian (c) As part of the occupational categories. Subcontinent or Pacific Islands. Contractor’s EEO policy Contractors shall complete the statement, the Contractor, as a Staffing plan form and submit it CERTIFIED ENTERPRISE precondition to entering into a as part of their bid or proposal or OR BUSINESS shall mean a valid and binding State Contract, within a reasonable time, but no business verified as a minority shall agree to the following in the later than the time of award of or women- owned business performance of the State the contract. enterprise pursuant to section Contract: (i) The Contractor will (e) Form 112 - Workforce 314 of the Executive Law. A not discriminate against any Employment Utilization Report business enterprise which has employee or applicant for (“Workforce Report”) been approved by the New York employment, will undertake or (i) Once a contract has been Division of Minority & Women continue existing programs of awarded and during the term of Business Development affirmative action to ensure that Contract, Contractor is (“DMWBD”) for minority or minority group members and responsible for updating and women-owned enterprise status women are afforded equal providing notice to SUNY of any subsequent to verification that employment opportunities changes to the previously the business enterprise is owned, without discrimination, and shall submitted Staffing Plan. This operated, and controlled by make and document its information is to be submitted on minority group members or conscientious and active efforts a quarterly basis during the term women, and that also meets the to employ and utilize minority of the contract to report the actual workforce utilized in the requirements of the Human Subcontractor to submit performance of the contract by Rights Law with regard to non- compliance reports, pursuant to the specified categories listed discrimination on the basis of the regulations relating to their including ethnic background, prior criminal conviction and operations and implementation of gender, and Federal occupational prior arrest. their affirmative action or equal categories. The Workforce employment opportunity Report must be submitted to program in effect as of the date report this information. (g) The Contractor shall the State Contract is executed. (ii) Separate forms shall be include the provisions of this (j) If a Contractor or completed by Contractor and any section in every Subcontract in Subcontractor does not have an subcontractor performing work such a manner that the existing affirmative action on the Contract. requirements of the provisions program, the University may (iii) In limited instances, will be binding upon each provide to the Contractor or Contractor may not be able to Subcontractor as to work in Subcontractor a model plan of an separate out the workforce connection with the State affirmative action program. utilized in the Contract, including the Upon request, the Director of performance of the Contract from requirement that Subcontractors DMWBD shall provide a Contractor's and/or shall undertake or continue contracting agency with a model subcontractor’s total existing programs of affirmative plan of an affirmative action workforce. When a separation action to ensure that minority program. can be made, Contractor shall group members and women are (k) Upon request, DMWBD submit the Workforce afforded equal employment shall provide the University with Report and indicate that the opportunities without information on specific information provided related to discrimination, and, when recruitment sources for minority the actual workforce requested, provide to the group members and woman, and utilized on the Contract. When Contractor information on the contracting agencies shall make the workforce to be utilized ethnic background, gender, and such information available to on the contract cannot be Federal occupational categories Contractors separated out from Contractor's of the employees to be utilized and/or subcontractor's total on the State Contract. 3. Contractor must provide workforce, Contractor shall (h) To ensure compliance the names, addresses and federal submit the Workforce Report and with the requirements of this identification numbers of indicate that the information paragraph, the University shall certified minority- and women- provided is Contractor's total inquire of a Contractor whether owned business enterprises workforce during the subject the work force to be utilized in which the Contractor intends to time frame, not limited to the performance of the State use to perform the State Contract work specifically under the Contract can be separated out and a description of the Contract contract. from the Contractor’s and/or scope of work which the (f) Contractor shall comply with Subcontractors' total work force Contractor intends to structure to the provisions of the Human and where the work of the State increase the participation by Rights Law, all other State and Contract is to be performed. For Certified minority- and/or Federal statutory and Contractors who are unable to women-owned business constitutional non-discrimination separate the portion of their enterprises on the State Contract, provisions. Contractor and work force which will be and the estimated or, if known, subcontractors shall not utilized for the performance of actual dollar amounts to be paid discriminate against any this State Contract, Contractor to and performance dates of each employee or applicant for shall provide reports describing component of a State Contract employment because of race, its entire work force by the which the Contractor intends to creed (religion), color, sex, specified ethnic background, be performed by a certified national origin, sexual gender, and Federal minority- or woman-owned orientation, military status, age, Occupational Categories, or business enterprise. In the event disability, predisposing genetic other appropriate categories the Contractor responding to characteristic, marital status or which the agency may specify. University solicitation is joint domestic violence victim status, (i) The University may venture, teaming agreement, or and shall also follow the require the Contractor and any other similar arrangement that includes a minority-and women group members and women for owned business enterprises owned business enterprise, the employment. which have been certified by Contractor must submit for (c) Whether Contractor DMWBD: review and approval: i. the name, disseminated its EEO policy by (a) Whether Contractor has address, telephone number and including it in any advertising in actively solicited bids for federal identification of each the news media, and in Subcontracts from qualified partner or party to the agreement; particular, in minority and M/WBEs, including those firms ii. the federal identification women news media. listed on the Directory of number of the joint venture or (d) Whether Contractor has Certified Minority and Women- entity established to respond to attempted to provide Owned Business Enterprises, the solicitation, if applicable; iii. information concerning its EEO and has documented its good A copy of the joint venture, policy to Subcontractors with faith efforts towards meeting teaming or other similar which it does business or had minority and women owned arrangement which describes the anticipated doing business. business enterprise utilization percentage of interest owned by (e) Whether internal plans by providing, copies of each party to the agreement and procedures exist for, at a solicitations, copies of any the value added by each party; iv. minimum, annual dissemination advertisements for participation A copy of the mentor-protégé of the EEO policy to employees, by certified minority- and agreement between the parties, if specifically to employees having women-owned business applicable, and if not described any responsibility for hiring, enterprises timely published in in the joint venture, teaming assignment, layoff, termination, appropriate general circulation, agreement, or other similar or other employment decisions. trade and minority- or women- arrangement. Such dissemination may occur oriented publications, together through distribution of with the listing(s) and date(s) of 4. PARTICIPATION BY employee policy manuals and the publications of such MINORITY GROUP handbooks, annual reports, staff advertisements; dates of MEMBERS AND WOMEN. meetings and public postings. attendance at any pre-bid, pre- The University shall determine (f) Whether Contractor award, or other meetings, if any, whether Contractor has made encourages and utilizes minority scheduled by the University, conscientious and active efforts group members and women with certified minority- and to employ and utilize minority employees to assist in recruiting women-owned business group members and women to other employees. enterprises, and the reasons why perform this State Contract (g) Whether Contractor has any such firm was not selected based upon an analysis of the apprentice training programs to participate on the project. following factors: approved by the N.Y.S. (b) Whether Contractor has (a) Whether Contractor Department of Labor which attempted to make project plans established and maintained a provides for training and hiring and specifications available to current list of recruitment of minority group members and firms who are not members of sources for minority group women. associations with plan rooms members and women, and (h) Whether the terms of and reduce fees for firms who whether Contractor provided this section have been are disadvantaged. written notification to such incorporated into each (c) Whether Contractor has recruitment sources that Subcontract which is entered utilized the services of contractor had employment into by the Contractor. organizations which provide opportunities at the time such technical assistance in opportunities became available. 5. PARTICIPATION BY connection with M/WBE (b) Whether Contractor sent MINORITY AND WOMEN- participation. letters to recruiting sources, OWNED BUSINESS (d) Whether Contractor has labor unions, or authorized ENTERPRISES. Based upon an structured its Subcontracts so representatives of workers with analysis of the following factors, that opportunities exist to which contractor has a collective the University shall determine complete smaller portions of bargaining or other agreement or whether Contractor has made work. understanding requesting good faith efforts to provide for e) Whether Contractor has assistance in locating minority meaningful participation by encouraged the formation of minority-owned and women- joint ventures, partnerships, or other similar arrangements minority- or women-owned University-wide MWBE among Subcontractors. business; and Program Office shall notify the (f) Whether Contractor has Contractor and direct the requested the services of the (c) Any modifications or Contractor to submit, within five Department of Economic changes to the agreed (5) business days, a request for Development (DED) to assist participation by NYS Certified partial or total waiver of MWBE Subcontractors' efforts to satisfy MWBEs after the Contract participation goals on forms bonding requirement. Award and during the term of provided by the University-wide (g) Whether Contractor has the contract must be reported on MWBE Program Office. made progress payments a revised MWBE Utilization ii. Failure to file the waiver promptly to its Subcontractors. Plan and submitted to the SUNY form in a timely manner may be (h) Whether the terms of University-wide MWBE grounds for disqualification of this section have been Program Office. the bid or proposal. incorporated into each Subcontract which is entered (d) The University will review (f) The University may into by the Contractor. It shall the MWBE Utilization Plan and disqualify a Contractor as being be the responsibility of Con- will issue the Contractor a non-responsive under the tractor to ensure compliance by written notice of acceptance or following circumstances: every Subcontractor with these deficiency within twenty (20) i. If a Contractor fails to provisions. day of its receipt. A notice of submit a MWBE Utilization deficiency shall include the: Plan; 6. MWBE Utilization Plan. ii. If a Contractor fails to (a) The Contractor represents i. list NYS Certified submit a written remedy to a and warrants that Contractor has minority- and women-owned notice of deficiency in a MWBE submitted an MWBE Utilization business enterprises which the Utilization Plan; Plan prior to the execution of the Contractor intends to use to iii. If a Contractor fails to contract. perform the State contract; submit a request for waiver; or ii. name of any MWBE iv. If the MWBE Program (b) MWBE Utilization Plan which is not acceptable for the Office determines that the (Form 7557-107). purpose of complying with the Contractor has failed to Contractors are required to MWBE participation goals; document Good Faith Efforts. submit a Utilization Plan on iii. reasons why it is not an Form 7557-107 with their bid or acceptable element of the (g) Contractor agrees to use proposal. Complete the Contract scope of work which such MWBE Utilization Plan for following steps to prepare the the MWBE Program Office has the performance of MWBEs on Utilization Plan: determined can be reasonably the Contract pursuant to the i. list NYS Certified structured by the Contractor to prescribed MWBE goals set minority- and women-owned increase the likelihood of forth in Section III-A of this business enterprises which the participation in the Contract by Appendix. Contractor intends to use to MWBEs; and perform the State contract; iv. other information which (h) Contractor further agrees ii. insert a description of the MWBE Program Office that a failure to submit and/or the contract scope of work determines to be relevant to the use such MWBE Utilization which the Contractor intends to MWBE Utilization Plan. Plan shall constitute a material structure to increase the breach of the terms of the participation by NYS Certified (e) The Contractor shall Contract. Upon the occurrence minority- and women-owned respond to the notice of of such a material breach, enterprises on the State contract; deficiency within seven (7) SUNY shall be entitled to any iii. insert the estimated or, business days of receipt by remedy provided herein, if known, actual dollar amounts submitting to the University a including but not limited to, a to be paid to and performance written remedy in response to finding of Contractor non- dates of each component of a the notice of deficiency. responsiveness. State contract which the i. If the written remedy Contractor intends to be that is submitted is not timely or 7. Waivers. performed by a NYS Certified is found to be inadequate, the (a) For Waiver Requests WORK FORCE good faith efforts to achieve a Contractor should use (Form PARTICIPATION. participation goal of _____ 7557-114) – Waiver Request. (i) The University shall percent (_____%) for Certified include relevant work force Minority-Owned Business (b) If the Contractor, after availability data, which is Enterprises and _____ percent making good faith efforts, is provided by the DMWBD, in all (_____%) for Certified Women- unable to comply with MWBE documents which solicit bids for Owned Business Enterprises. goals, the Contractor may State Contracts and shall make submit a Request for Waiver efforts to assist Contractors in form documenting good faith utilizing such data to determine 10. ENFORCEMENT. The efforts by the Contractor to meet expected levels of participation University will be responsible such goals. If the for minority group members and for enforcement of each documentation included with the women on State Contracts. Contractor's compliance with waiver request is complete the (ii) Contractor shall exert these provisions. Contractor, University shall evaluate the good faith efforts to achieve and each Subcontractor, shall request and issue a written such goals for minority and permit the University access to notice of acceptance or denial women's participation. To its books, records and accounts within twenty (20) days of successfully achieve such goals, for the purpose of investigating receipt. the employment of minority and determining whether group members and women by Contractor or Subcontractor is in (c) If University, upon review Contractor must be substantially compliance with the of the MWBE Utilization Plan uniform during the entire term requirements of Article 15-A of and updated Quarterly MWBE of this State Contract. In the Executive Law. If the Contractor Compliance Reports addition, Contractor should not University determines that a determines that Contractor is participate in the transfer of Contractor or Subcontractor failing or refusing to comply employees from one employer may not be in compliance with with the Contract goals and no or project to another for the sole these provisions, the University waiver has been issued in purpose of achieving goals for may make every reasonable regards to such non-compliance, minority and women's effort to resolve the issue and the University may issue a participation. assist the Contractor notice of deficiency to the or Subcontractor in its efforts to Contractor. The contractor must (b) GOALS FOR comply with these provisions. If respond to the notice of MINORITY AND WOMEN- the University is unable to deficiency within seven (7) OWNED BUSINESS resolve the issue of ENTERPRISES business days of receipt. Such noncompliance, the University PARTICIPATION. For all State response may include a request may file a complaint with the Contracts in excess of for partial or total waiver of DMWBD. $25,000.00 whereby the MWBE Contract Goals. University is committed to Failure to comply with all of the expend or does expend funds in 8. Quarterly MWBE requirements herein may result return for labor, services Contractor Compliance in a finding of non- including but not limited to Report. responsiveness, non- legal, financial and other Contractor is required to submit responsibility and/or a breach of professional services, supplies, a Quarterly MWBE Contractor contract, leading to the equipment, materials or an Compliance Report (Form 7557- withholding of funds or such combination of the foregoing or 114) to the University by the 5th other actions, remedies or all State Contracts in excess of day following each end of enforcement proceedings as $100,000.00 whereby the quarter over the term of the allowed by the Contract. University is committed to Contract documenting the expend or does expend funds for progress made towards 11. DAMAGES FOR NON the acquisition, construction, achievement of the MWBE COMPLIANCE. demolition, replacement, major goals of the Contract. Where the University determines repair or renovation of real that Contractor is not in property and improvements 9. GOALS. (a) GOALS FOR compliance with the thereon, Contractor shall exert MINORITY AND WOMEN requirements of the Contract and Contractor refuses to comply Contractor achieved the after such damages are assessed, with such requirements, or if contractual MWBE goals; and unless prior to the expiration of Contractor is found to have such sixtieth day, the Contractor willfully and intentionally failed b. All sums actually paid to has filed a complaint with the to comply with the MWBE MWBEs for work performed or Director of the Division of participation goals, Contractor materials supplied under the Minority and Woman Business shall be obligated to pay Contract. Development pursuant to liquidated damages to the Subdivision 8 of Section 313 of University. Such liquidated In the event a determination has the Executive Law in which damages shall be calculated as an been made which requires the event the liquidated damages amount equaling the difference payment of liquidated damages shall be payable if Director between: and such identified sums have renders a decision in favor of the not been withheld by the University. a. All sums identified for University, Contractor shall pay payment to MWBEs had the such liquidated damages to the University within sixty (60) days