Legislation Details

Int. No. 322

By Council Members O’Donovan, Boyland and Freed; also Council Members Koslowitz, Marshall, Michels, Warden and Perkins.

A Local Law to amend the administrative code of the city of New York, in relation to establishment of a minority and woman-owned business enterprise program.

Be it enacted by the Council as follows:

                         Section One.  Title 22 of the administrative code of the city of New York is amended by adding a new chapter eight to read as follows:

CHAPTER 8

Minority- and Woman-Owned

Business Enterprise Program

     §22-801                     Definitions

     §22-802                     Eligibility criteria

     §22-803                     Application intake and verification

     §22-804                     Notice of determination

     §22-805                     Appeals

   §22-806                     Revocation of minority- or woman-owned business

               enterprise status

    §22-807                     City-wide minority and woman-owned business enterprise utilization goals

    §22-808                     Determining credit for participation in contracts by certified minority-owned and woman-owned business enterprises

    §22-809                     Responsibilities of the division of economic and financial opportunity.

    §22-810                     Agency minority and woman-owned business enterprise officers

    §22-811                     Achieving agency minority and woman-owned business enterprise utilization goals - general provisions

    §22-812                     Contracts subject to minority-owned business enterprise and/or woman-owned business enterprise utilization requirements

    §22-813                     Competitive sealed proposals - minority and woman-owned business enterprise participation as an evaluation criterion

    §22-814                     Targeted solicitations for contracts above the small purchase level

    §22-815                     Small purchases

    §22-816                     Agency minority and woman-owned business enterprise utilization plans

    §22-817                     Agency compliance reporting

    §22-818                     Commissioner's authority to promote achievement of goals

    §22-819                     Compliance with contractor utilization plans

    §22-820                     Waiver and modification of minority and woman-owned business enterprise utilization requirements

    §22-821                     Prequalification

    §22-822                     Complaints

    §22-823                     Enforcement - contract award process

    §22-824                     Enforcement - contract administration

    §22-825                     Revocation of minority-owned or woman-owned business enterprise certification

    §22-826                     Procurements by elected officials and certain agencies

    §22-827                     Applicability

    §22-828                     Graduate minority and woman-owned business enterprise provision

    §22-829                     Contract dates

    §22-830                     Severability

                         §22-801 Definitions.  As used in chapter eight of this title, the following terms shall have the following meanings:

                         a. Agency.  Any agency of the city of New York whose procurements are subject to the rules of the procurement policy board pursuant to chapter 13 of the New York city charter.

                         b. Agency Chief Contracting Officer.  A person to whom an agency head has delegated authority to organize and supervise the agency's procurement activity in conjunction with the city Chief Procurement Officer.

                         c. All reasonable efforts.  The standard to be applied in determining whether to grant a contractor's request for a post-award modification of minority or woman-owned business enterprise utilization requirements.

                         d.  Applicant.  A business enterprise which has applied for certification as a minority-owned business enterprise and/or a woman-owned business enterprise.

                         e. Audit.  An examination of a business enterprise to determine whether the business enterprise is eligible for certification as a minority-owned business enterprise and/or a woman-owned business enterprise, and may include an examination of books, records, physical facilities and interviews of applicants.

                         f. Bidder. Any person submitting a competitive bid in response to a solicitation.

                         g. Bidders/Proposers list.  A list maintained for the purposes of setting out the names and addresses of firms engaged in the business of providing goods, services and construction from whom bids, proposals and quotations can be solicited.

                         h. Business enterprise.  Any entity, including, but not limited to, a sole proprietorship, partnership or corporation which is authorized to and engages in lawful business transactions in accordance with the laws of New York state.

                         i. Certification letter.  The letter sent by the department of business services to an applicant notifying it of its certification as a minority-owned business enterprise or woman-owned business enterprise.

                         j. Certified business.  A business enterprise which has been approved for certification as a minority-owned business enterprise or woman-owned business enterprise in accordance with the procedures set forth in section 22-802 of this chapter, subsequent to verification that the business enterprise is owned, operated and controlled by minority group members as defined in section 22-801 of this chapter, or women.

                         k  Certified minority-owned business enterprise.  A business enterprise certified as a minority-owned business enterprise pursuant to this title.

                         l. Certified woman-owned business enterprise.  A business enterprise certified as a woman-owned business enterprise pursuant to this title.

                         m. City.  The city of New York.

                         n. City Chief Procurement Officer.  A person to whom the mayor has delegated authority to coordinate and oversee the procurement activity of mayoral agency staff, including the agency chief contracting officers, and any offices which have oversight responsibility for the procurement of construction, computers and computer services.  With respect to procurements by independently elected officials, the city council, and entities the majority of whose members are appointed directly or indirectly by city officials, the functions assigned by this chapter to the city chief procurement officer shall be performed as described in section 22-826 of this chapter.

                         o. Commercially useful function.  A certified minority-owned business enterprise or woman-owned business enterprise is providing a commercially useful function if it is performing real and actual services in the discharge of a contract.  The business must perform a distinct and verifiable element of the work called for in the contract.  In determining whether a certified minority-owned business enterprise or woman-owned business enterprise is performing a commercially useful function, factors including, but not limited to, the following will be considered:

                         1.  whether the minority-owned business enterprise or woman-owned business enterprise is in the business of performing, managing or supervising the work for which it has been certified and is being utilized;

                         2.  whether the minority-owned business enterprise or woman-owned business enterprise has the skill and expertise to perform work for which it is being utilized;

                         3.  Whether the minority-owned business enterprise or woman-owned business enterprise purchases good and/or services from another business and whether its participation in the contract would have the principal effect of allowing the minority-owned business enterprise or woman-owned business enterprise to business enterprise person or broker, thereby qualifying expenditures for such goods and/or services to be counted toward utilization requirements for certified minority-owned business enterprises and woman-owned business enterprises; and

                         4.  whether the minority-owned business enterprise or woman-owned business enterprise is responsible for the purchase and quality of, and payment for, materials used to perform its work under the contract.

                         There shall be a rebuttable presumption that, where the minority-owned business enterprise or woman-owned business enterprise subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, the minority-owned business enterprise or woman-owned business enterprise is not performing a commercially useful function.  Any portion of the value of the contract that a minority-owned business enterprise or woman-owned business enterprise subcontractor subcontracts back to the prime contractor or an affiliate of the prime contractor shall not be counted toward minority-owned business enterprise or woman-owned business enterprise goals.

                         p. Commissioner.  The commissioner of the New York City department of business services or his or her designee, or such commissioner's successor in function authorized to carry out the powers and duties set forth in section 1304 of the New York city charter or its successor, as either may be amended from time to time.

                         q. Contract.  An agreement between an agency and a person who is obligated pursuant to the agreement to provide goods, services or construction, in accordance with the terms and conditions of the agreement.  As used in this chapter, the term "contract" includes purchase orders.

                         r. Contractor. Any person who has been awarded a contract.

                         s. Contractor utilization plan.  The statement which must be submitted by a bidder, proposer or contractor to a contracting agency setting forth its plan to utilize certified minority-owned business enterprises and/or woman-owned business enterprises in the performance of a city contract, as described in section 22-812 of this chapter and section 22-813 of this chapter.

                         t. Day.  A calendar day unless otherwise specified.

                         u. Denial or denied.  A determination by the department of business services that a business enterprise is not eligible for certification as a minority-owned business enterprise or a woman-owned business enterprise because it does not meet the criteria for certification.

                         v. Department. Department of Business Services of the City of New York.

                         w. Director.  The director of the minority- and woman-owned business enterprise program or his or her designee or his or her successor in function.

                         x. Directory. The directory or listing of certified minority-owned and woman-owned business enterprises prepared by the commissioner pursuant to this chapter.

                         y. Expenditure.  Any payment by an agency pursuant to a procurement to which this chapter is applicable, as set forth in section 22-828 of this chapter.

                         z. Geographic Market of the City.  The following counties: Bronx, Kings, New York, Queens, Richmond, Nassau, Rockland, Suffolk and Westchester within the State of New York; Bergen, Essex, Hudson, Middlesex, Monmouth, Morris, Passaic, Somerset and Union within the State of New Jersey; and Fairfield within the State of Connecticut.

                         aa. Goal. A numerical objective for participation by certified minority-owned business enterprises and woman-owned business enterprises in city contracts.

                         bb. Graduate minority-owned business enterprise and/or woman-owned business enterprise.  A business enterprise that has maintained annual gross receipts over a period of two years in excess of the level established for firms in the relevant trade, industry, service or commodity market pursuant to section 22-829 of this chapter.

                         cc. Joint venture.  An association, of limited scope and duration, between two or more persons who have entered into a written agreement to act as a contractor or subcontractor and in which each member of the association performs a commercially useful function in the execution of a contract, contributing property, capital, effort, skill and/or knowledge, and in which each such person is entitled to share in the profits and losses of the venture in reasonable proportion to the economic value of its contribution.

                         dd. Minority group member.  A United States citizen or permanent resident alien who is, and can demonstrate membership in, one of the following groups:

                         1.  Black persons having origins in any of the Black African racial groups;

                         2.  Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent of either Indian or Hispanic origin, regardless of race; or

                         3.  Asian and Pacific Islander persons having origins in any of the Far East countries, Southeast Asia, the Indian Subcontinent or the Pacific Islands.

                         ee. Minority-owned business enterprise.  A business enterprise that is:

                         1.  at least fifty-one (51%) percent owned by one (1) or more minority group members;

                         2.  a business enterprise in which such minority ownership is real, substantial and continuing;

                         3.  a business enterprise in which such minority ownership possesses and exercises the authority to control and operate, independently, the day-to-day business decisions of the enterprise; and

                         4.  a business enterprise authorized to do business in New York State that is independently owned and operated.

                         ff. Minority- and woman-owned business enterprise certification application or certification application.  The form that the department of business services requires an applicant to submit for purposes of applying for certification as a minority-owned business enterprise or woman-owned business enterprise.

                         gg. Person.  Any business, individual, partnership, corporation, union, firm, company, committee, club, other organization, governmental body, or group of individuals.

                         hh. Principal office or place of business.  The location where the main office and regular meeting place of the board of directors that manages, conducts, and directs the business is located.

                         ii. Procurement. Buying, purchasing, renting, leasing or otherwise acquiring any goods, services or construction, through the execution of a contract.

                         jj. Proposal evaluation criteria.  Factors, usually weighted, relating to management capability, technical capability, manner of meeting performance requirements, price and other important considerations used to evaluate which proposer in a competitive negotiation has made the most advantageous offer.

                         kk. Proposer. A person submitting a proposal in response to a request for proposals.

                         ll. Qualified joint venture.  A joint venture between one or more certified minority-owned business enterprises or woman-owned business enterprises and another person, who have entered into a written joint venture agreement which demonstrates that the certified minority-owned business enterprise or woman-owned business enterprise will perform a commercially useful function and in which the percentage of profit and loss to which the certified business or firms is entitled for participation in the contract, as set forth in the written joint venture agreement, is at least thirty five (35) percent of the total profit and loss from the contract on which venture is bidding or making a proposal.

                         mm. Rejected or rejection.  The refusal by the department of business services to certify a business enterprise as a minority-owned business enterprise or woman-owned business enterprise due to an insufficiency in documentation submitted by the applicant.

                         nn. Scope of work. For purposes of this chapter, scope of work means:

                         1.  specific tasks required by the contract; and/or

                         2.  The provision of services or goods which are necessary to perform specific tasks required by the contract.

                         oo. Subcontractor.  A person who has entered an agreement with a contractor to provide services or construction in furtherance of the contractor's obligations pursuant to its contract.

                         pp. Supplier.  A person from whom a contractor obtains supplies needed in order to perform services or construction for, or supply goods to, the city pursuant to the contract awarded to the contractor.

                         qq. Woman-owned business enterprise.  A business enterprise that is:

                         1.  at least fifty-one (51%) percent owned by one (1) or more women who are United States citizens or permanent resident aliens;

                         2.  a business enterprise in which the ownership interest of such women is real, substantial and continuing;

                         3.  a business enterprise in which such women possess and exercise the authority to control and operate, independently, the day-to-day business decisions of the enterprise; and

                         4. a business enterprise authorized to do business in New York State and which is independently owned and operated.

                         §22-802  Eligibility Criteria.  The following standards shall be used to determine whether a business enterprise is eligible for certification as a minority-owned business enterprise or woman-owned business enterprise.

                         a. Nexus.  In order to be eligible for certification as a minority-owned business enterprise or woman-owned business enterprise, a business enterprise must have a real and substantial business presence within the city.  A minority-owned business enterprise or woman-owned business enterprise which meets one of the following conditions shall be deemed to have a real and substantial business presence within the city.

                         1.  the business enterprise's principal office, principal place of business or headquarters is located within the city;

                         2.  the business enterprise maintains full-time employees in one or more of its offices in the city to conduct or solicit business within the city the majority of their working time;

                         3.  the business enterprise's principal office, principal place of business or headquarters is located within the geographic market of the city, and

                         (i)  has transacted business more than once in the city within the last three (3) years, or

                         (ii) has sought to transact business more than once in the city within the last three (3) years; or

                         4.  Twenty-five percent (25%) of the business enterprise's annual gross receipts for the last three- (3) years were derived from transacting business in the city.

                         5.  That the business enterprise has maintained a bank account or engaged in other banking transactions in the city;

                         6.  that the business enterprise has bid on contracts in the city; or

                         7.  that the business enterprise possesses a license issued by an agency of the city to do business in the city.

                         In determining eligibility under this section, the commissioner may consider comparable indicia submitted by the applicant to demonstrate the applicant's real and substantial business presence in the city;

                         b.  Ownership.  For the purposes of determining whether an applicant should be certified as a minority-owned business enterprise or woman-owned business enterprise, or whether such certification should be revoked, the following rules concerning ownership shall be applied.

                         1.  The equity interest of minority group member(s) or women owners must be proportionate to the contribution of the minority group member(s) or women owners as demonstrated by, but not limited to, contributions of money, property, equipment or expertise;

                         2. A sole proprietorship must be owned by a minority group member or woman;

                         3.  A partnership must demonstrate that minority group members or women have a fifty-one (51%) percent or greater share of the partnership; and

                         4.  A corporation must have issued at least fifty-one (51%) percent of its issued and authorized voting and all other stock to minority group members or women shareholders.

                         c.  Control.  Determinations as to whether minority group members or women control the business enterprise will be made in accordance with the following:

                         1.  Decisions pertaining to the operations of the business enterprise must be made by minority group members or women claiming ownership of that business enterprise.  The following will be considered in determining whether the minority group members or women are making such decisions:

                         (i)  whether minority group members or women have experience and technical competence in the business engaged in by the business enterprise seeking certification;

                         (ii) whether minority group members or women demonstrate the working knowledge and ability needed to operate the business enterprise; and

                         (iii)  whether minority group members or women show that they devote time on an ongoing basis to the daily operation of the business enterprise.

                         2.  Articles of incorporation, corporate by-laws, partnership agreements, business certificates, corporate tax returns, unincorporated business tax returns, partnership tax returns and other agreements, including, but not limited to, loan agreements, mortgage agreements, lease agreements, supply agreements, credit agreements or other agreements must permit minority group members or women who claim ownership of the business enterprise to make those decisions pertaining to operations of the business enterprise without restrictions.

                         3.  Minority group members or women must demonstrate control of negotiations, signature authority for payroll, leases, letters of credit, insurance bonds, banking services and contracts, and other business transactions through production of relevant documents.

                         d.  Additional eligibility provisions.  The following provisions apply to all applicants seeking certification as a minority-owned business enterprise or woman-owned business enterprise.

                         1.  Documentation may be required to substantiate the claim of membership in a minority group.  This documentation may include, but is not limited to, birth certificates, foreign passports, naturalization papers, registration on Native American tribal rolls and nonresident visas.

                         2.  Where the actual management of the business enterprise is contracted out to individuals other than minority group members or women, minority group members and women must demonstrate that they have the ultimate power to hire and fire these managers, that they exercise this power and make other substantial decisions which reflect control of the business enterprise.

                         3.  Documentation of one (1) year's business activity shall be required in order to provide sufficient information upon which certification can be reasonably made.  The commissioner, in his or her discretion, may permit documentation for a lesser period.

                         4.  The commissioner may determine that a business enterprise is a minority or woman-owned business enterprise in accordance with this section if (i) it is certified as a minority-owned business enterprise or woman-owned business enterprise by the New York State office of minority and women's business development pursuant to article 15-A of the New York State executive law and any rules or regulations promulgated thereunder, or (ii) it is certified as a minority-owned business enterprise or woman-owned business enterprise by another governmental entity whose minority- and woman-owned business enterprise certification criteria are determined by the commissioner to be consistent with the certification criteria set forth in this chapter.  Unless otherwise determined by the commissioner, any certification granted pursuant to this subdivision is valid only for the period during which the business enterprise is certified as a minority-owned business enterprise and/or woman-owned business enterprise with the original certifying governmental entity.

                         5.  Any business enterprise that satisfies the eligibility criteria as set forth in this section, is presumptively eligible for certification under this chapter; provided that the commissioner may decline to certify, or revoke the certification of, any business enterprise on the ground that there is not a firm basis for believing that there is a compelling state interest to justify certification of that business enterprise under this chapter.

                         §22-803  Application Intake and Verification. a. Applications for certification as a minority- or woman-owned business enterprise may be obtained from, and must be returned to, the department which shall date stamp the date of receipt of a certification application upon receiving it.

                         b.  An applicant shall submit such information and documentation as may be required by the department in connection with its certification as a minority-owned business enterprise or woman-owned business enterprise.  Failure to submit such information or documentation may result in the rejection or revocation of such certification.

                         c.  If an application for certification is received by the department and required documents are missing, questions are unanswered or the application is not properly notarized, the department shall send to the applicant, within forty-two days of the initial date stamped on the application, a notice requesting the submission of any missing documents and responses to unanswered questions and the cure of any defects in notarization. An applicant shall make such submissions and cure the noticed deficiency by providing the department with corrections requested in the notice, within twenty-eight days of the date of the notice.

                         d.  When the applicant cures a noticed deficiency, pursuant to procedures set forth in subdivision (c) of this section, the department has an additional forty-two days to advise the applicant of any further deficiency which may be cured in accordance with subdivision (c) of this section.

                         e.  If the applicant does not cure a noticed deficiency, pursuant to procedures set forth in subdivision (c) of this section, and the application remains incomplete for at least forty-two days from the date of the notice, unless such time is extended by the director, the applicant shall be sent a notice stating that its application has been rejected and will not be processed, together with its application.

                         f.  An applicant whose certification as a minority-owned business enterprise or woman-owned business enterprise is rejected, may not reapply for certification for at least one hundred and twenty days from the date of the notice of rejection of its application.

                         g.  The commissioner may require applicants to consent to inquiries to their bonding companies, banking institutions, credit agencies, contractors, affiliates, clients and other entities to ascertain the applicant's eligibility for certification.  Refusal to permit such inquiries when requested by the agency shall be grounds for rejection of a application.

                         h.  All applicants and certified businesses shall be subject to an audit of all financial records at any time.  An applicant's or certified business' refusal to cooperate with an audit shall be grounds for denial of its application for certification or revocation of its certification.

                         i.  A certification application may be withdrawn by an applicant without prejudice at any time prior to an audit. Following the withdrawal of an application, the applicant may not reapply for certification for a period of at least one hundred and twenty days from the date the application was withdrawn.

                         j.  All applicants and certified businesses may be required to provide documentation to substantiate that the business enterprise has the skill and expertise to perform in the particular area of work for which it is requesting listing or is listed in the directory.

                         k. All applications shall be signed and notarized.

                         §22-804  Notice of Determination. a. The director shall provide the applicant with written notice of a determination approving or denying certification.

                         b.  In the event certification is approved by the director, the applicant will be sent a certification letter and will be certified as a minority-owned business enterprise or woman-owned business enterprise for two years from the date of the certification letter or until notified of the need to reapply at the director's request, whichever is earlier.

                         c.  In the event certification is denied by the director, a written notice of such determination shall be provided to the applicant stating the reason(s) for such denial.  Such notice shall also state the procedures for filing an appeal.  Such notice shall also state that if the facts and circumstances forming the basis of the denial decision have changed significantly, the applicant, may write to the director requesting permission to reapply, and the director may grant such permission by letter to the applicant.

                         §22-805  Appeals.  a. An applicant for certification or recertification whose application has been denied or rejected may appeal the determination within thirty days after the date of the notice denying or rejecting the application.  Such appeal or a request for an extension of time within which to file an appeal, must be received by the commissioner no later than thirty days after the day of notice denying or rejecting the business enterprise's application for certification or recertification.  In the event that a request for an appeal is not made within the thirty day period, the director's determination shall be deemed final and the applicant may not reapply for certification for two years from the date of the written notice denying certification, provided, however, that if the facts and circumstances forming the basis of the denial decision have changed significantly, the applicant, may write to the director requesting permission to reapply, and the director may grant such permission by letter to the applicant.

                         b.  The appeal shall state the grounds upon which the denial of certification is being appealed.

                         c. The commissioner may extend the period in which to initiate an appeal for good cause shown.  Such appeal shall include, at a minimum, a description of the reasons why the decision to deny certification or recertification is in error and provide evidence to support its appeal.  Such persons shall provide such other documentation or information as is requested by the commissioner.  The decision of the commissioner granting or denying such appeal shall constitute the final agency determination.

                         §22-806  Revocation of minority- or woman-owned business enterprise status.  a. A certified business must notify the department within forty-two days of any material change in the information contained in the original application for certification or any subsequent material otherwise provided to the department.  A material change may include, but is not limited to, a change in any of the following: ownership; business address; officers or partners, where applicable; or services provided by the certified business.  If a material change occurs, a review may be conducted by the department and certification may be revoked. If a minority-owned business enterprises or woman-owned business enterprise's certification is revoked, such business enterprise may reapply for certification at any time following revocation. If a certified business fails to notify the director of such material change, the director may in his or her discretion, revoke or suspend , the certification of a minority-owned business enterprise or woman-owned business enterprise for a period to be proscribed by the commissioner.

                         b.  When the director or commissioner, has reason to believe or upon receiving allegations indicating that a certified business enterprise was not eligible for certification as a minority-owned business enterprise or woman-owned business enterprise or is no longer eligible for such certification, the director or commissioner may meet with minority group members or women claiming ownership and control of the certified business and may also conduct an audit of such business enterprise.  The director or commissioner shall thereafter take the following actions:

                         1.  Determine whether any allegation of can be substantiated;

                         2.  Obtain in writing, if possible, the basis of any allegation from the person or persons making the allegation;

                         3.  Notify a certified business in writing that its certification as a minority-owned business enterprise or woman-owned business enterprise is under review by the director and may be revoked, which notice shall specify the bases for such review and any facts specifically at issue; and

                         4.  Notify the certified business that it may respond in writing to any allegations set forth in any notices sent in accordance with paragraph 3 of this subdivision within twenty-eight days of the date of such notice, by personal service or certified mail, return receipt requested.

                         c.  If the minority group members or women claiming ownership of the certified business or their representative fails to respond timely in writing to the notice of certification status review, or fails to meet with a department representative or agree to an audit, the certification of the minority-owned business enterprise or woman-owned business enterprise may be revoked by the director.

                         d.  The director shall give written notice to a certified business that its certification as a minority-owned business enterprise or woman-owned business enterprise has been revoked within fourteen days of such revocation.  The minority group members or women claiming ownership and control of a certified business which has had its certification revoked, may appeal this decision within thirty days of the date of the notice of revocation.  Such appeal shall be conducted in accordance with procedures set forth in section 22-805 of this chapter.  If a request for an appeal is not made within that thirty day period, the director's determination shall be final and the business enterprise may not reapply for certification for two years from the date of the notice of revocation provided, however, that if the facts and circumstances forming the basis for the revocation change significantly, the business enterprise may, at the discretion of the director, be granted permission to reapply sooner.

                         e. If at any time the department has reason to believe that an applicant or certified business has willfully and knowingly provided incorrect information or made false statements, it shall refer the matter to the department of investigation. Falsification of any document by an applicant or a certified business may lead to the imposition of civil and criminal penalties as provided by law, revocation of certification as a minority-owned business enterprise or woman-owned business enterprise and debarment from city contracts.

                         §22-807  City wide minority and woman-owned business enterprise utilization goals. a.  The goals which follow in this subdivision are citywide goals to be used by agencies in setting goals for their agency minority and woman-owned business enterprise utilization plans.  Agencies shall seek to ensure substantial progress toward the attainment of these goals.  The citywide goals are not to be summarily adopted as goals for individual procurements.  Goals for procurements by individual agencies may be set at levels higher, lower, or the same as the citywide goals, as the market circumstances warrant, based on factors described in section 22-812 of this chapter.  The goals for participation by certified minority-owned business enterprises and woman-owned business enterprises in procurements by the city of New York shall be as follows:

                         1.  For certified minority-owned business enterprises:

                         i) 8 percent of the city's total expenditures for goods;

                         (ii) 14 percent of the city's total expenditures for services; and

                         (iii) 14 percent of the city's total expenditures for construction.

                         2.  For certified woman-owned business enterprises:

                         (i) 8 percent of the city's total expenditures for goods;

                         (ii) 9 percent of the city's total expenditures for services; and

                         (iii) 9 percent of the city's total expenditures for construction.

                         b.  The commissioner shall periodically review the availability of certified minority-owned business enterprises and woman-owned business enterprises for participation in city contracts, and the city's utilization of such firms, and determine on the basis of such review and any other relevant information whether it is appropriate to initiate a rulemaking procedure for revising the goals set forth in subdivision a of this section.  In making such determination, the commissioner shall consider the extent to which discrimination continues to have an impact on the ability of minorities and women to compete for city contracts. The first such review shall occur within two years of the effective date of this chapter, and subsequent reviews shall occur at least once every two years thereafter.

                         c.                     By December 31 of each year, beginning on the effective date of this chapter, the Commissioner shall publish an annual report for the fiscal year that ended on June 30 of such year.  Such report shall state, for each agency, and for the city:

                         1.  the number of contracts awarded, and the total dollars paid or to be paid pursuant to such contracts, as well as the total number of contracts awarded by the city and agencies with their dollar amount;

                         2.  the number of contracts awarded to each type of minority group member of certified minority-owned business enterprises and woman-owned business enterprises, the total dollars paid or to be paid pursuant to such contracts and a breakdown for each ethnic category on whether such dollars were for goods, services or construction;

                         3.  the number of contracts awarded which include a contractor utilization plan for participation by certified minority-owned business enterprises and/or woman-owned business enterprises, and the total payments made to such minority-owned business enterprises and woman-owned business enterprises pursuant to such plans; and

                         4. the fiscal year's original and any amended agency utilization plan with an explanation of why such plan was amended.

                         Such report shall also indicate the extent to which agencies have met the goals set forth in their individual agency minority and woman-owned business enterprise utilization plans, as described in section 22-816 of this chapter.

                         (d) The department shall also keep a record of all contracts awarded to minority and women owned business enterprises with the contract award amount.  This record shall be kept on a quarterly basis and shall be available upon request to any member of the council or the public.

                         §22-808  Determining credit for participation in contracts by certified minority-owned business enterprises and woman-owned business enterprises. a. Agency credit.  For purposes of determining how participation by certified minority-owned business enterprises and woman-owned business enterprises in an agency's contracts shall be credited toward that agency's achievement of its annual goals:

                         1.  The total dollar amount that an agency has paid or is obligated to pay to a contractor which is a certified minority-owned business enterprise or woman-owned business enterprise shall be credited toward the relevant goal.

                         2.  The total dollar amount that a contractor which is not a certified business has paid or is obligated to pay to a subcontractor which is a certified minority-owned business enterprise or woman-owned business enterprise shall be counted toward the relevant goal.

                         3.  The total dollar amount paid or to be paid by a contractor which is not a certified business to obtain supplies or services from a certified minority-owned business enterprise or woman-owned business enterprise may be counted toward utilization goals, but only if the supplies or services are of the class of supplies or services identified by the contracting agency in its solicitation of bids or proposals as eligible for such purpose. Contracting agencies shall take and allow credit only for supplies or services that are specifically identifiable to the contract.

                         4.  The total dollar amount paid or to be paid to minority and woman-owned business enterprises may be credited either toward the goal for minority-owned business enterprises or the goal for woman-owned business enterprises, or apportioned between the goals for both.

                         5.  Where one or more certified minority-owned business enterprise or woman-owned business enterprise is participating in a joint venture, the percentage of the total dollar amount of the contract which is proportionate to the percentage of the net profit from the contract to which the certified minority-owned business enterprises or woman-owned business enterprises are entitled, as stated in the joint venture agreement, shall be credited toward the relevant goal.

                         6.  Notwithstanding any other provision of this section, no credit shall be given for participation in a contract by any certified minority-owned business enterprise or woman-owned business enterprise that does not perform a commercially useful function, as defined in section 22-801 of this chapter.  The contractor shall have the burden of showing that a certified minority-owned business enterprise or woman-owned business enterprise is performing a commercially useful function.

                         7.  No credit shall be given for the participation in a contract

by any firm that has not been certified in accordance with this chapter.  However, if a firm has been certified within thirty days of the end of the fiscal year in which it was awarded a contract or subcontract or used as a supplier or service provider, the contracting agency may count the participation of the firm toward its achievement of the relevant goal.

                         b.  Contractor credit.  For purposes of determining how participation by certified minority-owned business enterprises and woman-owned business enterprises shall be credited toward a contractor's achievement of a requirement for utilization of certified businesses in a contract, the provisions of paragraphs two through seven of subdivision a of this section shall apply.

                         1.  No credit shall be given in the evaluation of a bid or proposal for the participation of any firm that has not been certified in accordance with this chapter before the date that bids are opened, or the date that proposals are due.

                         2.  In the case of a contract that is awarded subject to a requirement that contractor identify after the date of award the certified businesses that will participate in the contract, no credit shall be given to the contractor for the participation of a minority-owned business enterprise or woman-owned business enterprise that is not certified before the date that such firms must be identified, as specified in the contract.

                         3.  In the case of a requirements contract:

                         (i)  for the purpose of evaluating bids, the "dollar amount" under the contract shall be determined on the basis of the bid price per item multiplied by the estimated number of items to be furnished to the city pursuant to the contract; and

                         (ii)  for the purpose of determining whether the contractor has achieved the utilization requirements set forth in the contract, credit shall be given to the contractor for the actual dollar amount paid or obligated to be paid to a certified business for its participation in the contract.

                         4.  In the case of a contract for which the contractor is paid on a commission basis, the "dollar amount" under the contract shall be determined on the basis of the commission earned or anticipated to be earned under the contract.

                         5.  In the case of a procurement in which the contractor pays money to the city in exchange for something of value which the contractor will obtain for performing the contract, the "dollar amount" of the contract shall be determined by subtracting the amount of money paid to the city from the estimated value of goods or services which the contractor receives or retains.

                         §22-809 Responsibilities of the division of economic and financial opportunity.  a. The division of economic and financial opportunity of the department shall prepare and regularly update a directory.  The division of economic and financial opportunity shall send copies of such directory to all agencies and maintain copies available for public inspection at its offices and other locations within each borough.

                         b. The division of economic and financial opportunity shall make its resources available to assist agencies and contractors in (i) determining the availability of certified minority-owned business enterprises and woman-owned business enterprises to participate in their contracts as contractors, subcontractors or suppliers; and (ii) identifying opportunities appropriate for participation by certified minority-owned business enterprises and woman-owned business enterprises in contracts.

                         c. The division of economic and financial opportunity shall develop and maintain relationships with organizations representing contractors, including those owned by minorities and women, and solicit their support for the city's efforts to administer the program established by this chapter.

                         The division of economic and financial opportunity shall keep agency minority and woman-owned business enterprises officers informed of conferences, contractor fairs, and other services that are available to assist them in achieving the goals of this chapter.

                         §22-810  Agency minority and woman-owned business enterprise officers. The Agency Chief Contracting Officer or an individual who shall work with the Agency Chief Contracting Officer shall be designated as the agency minority and woman-owned business enterprise officer and shall be directly accountable to the agency head concerning the activities of the agency in carrying out its responsibilities pursuant to this chapter.  If the minority and woman-owned business enterprise officer is not the Agency Chief Contracting Officer, then he or she shall work closely with the Agency Chief Contracting Officer to ensure that all agency procurement activity is conducted in a manner consistent with this chapter.  The responsibilities of such officer shall include, but not be limited to:

                         a. Implementing the agency's minority and woman-owned business enterprise program;

                         b. Acting as the agency's liaison with the division of economic and financial opportunity ;

                         c. Acting as a liaison with organizations of women and minority businesses, informing such organizations of the agency's procurement procedures, and advising them of future procurement opportunities;

                         d. Ensuring that agency bid solicitations and requests for proposals are sent to minority-owned business enterprises and woman-owned business enterprises in a timely manner, consistent with the rules of the procurement policy board;

                         e. Referring minority-owned business enterprises and woman-owned business enterprises to technical assistance services available from city agencies and other organizations;

                         f. Responding to inquiries concerning the agency's participation in the minority and woman-owned business enterprise program or actions taken by the agency pursuant to this chapter;

                         g. Reviewing requests for waivers and modifications of minority and woman-owned business enterprise utilization requirements, and making appropriate recommendations after consultation with the division of economic and financial opportunity, the city chief procurement officer, and, where applicable, a person designated by the mayor, as described in section 22-820 of this chapter.

                         h. Monitoring the agency's procurement activities to ensure that they are in compliance with this chapter;

                         i. Preparing plans and reports required by this chapter.

                         §22-811  Achieving agency minority and woman-owned business enterprise utilization goals - general provisions. a.  Each agency head is directly accountable for achieving the goals set forth in his or her agency's minority and woman-owned business enterprise utilization plan.

                         b.  In planning its procurement activities over the course of the fiscal year, each agency shall consider how it will achieve the goals set forth in its approved minority and woman-owned business enterprise utilization plan.  In planning how it will make individual procurements, each agency shall consider whether it  is appropriate to utilize any of the techniques described in this chapter in order to obtain or encourage participation of certified minority-owned business enterprises and/or woman-owned business enterprises.  This determination should be guided by the agency's knowledge of the market involved in the procurement, and the level of progress it has made during the year toward meeting its goal for the relevant category of procurement.

                         c.  Agencies shall seek to utilize certified minority-owned business enterprises and woman-owned business enterprises in all facets of their procurement activities, including contracts awarded by negotiated acquisition, and emergency contracts. Agencies shall seek to utilize certified businesses for all types of goods, services and construction they procure.

                         d.  Agencies shall encourage eligible businesses to apply for certification as minority-owned business enterprises and woman-owned business enterprises pursuant to this chapter. Agencies shall also encourage certified minority-owned business enterprises and woman-owned business enterprises to have their names included on their bidders lists, seek Prequalification where applicable, and compete for city business as contractors, subcontractors and suppliers.  Agencies are encouraged to advertise procurement opportunities in general circulation media, trade and professional association publications and small business media, and publications of minority and women's business organizations; and send written notice of specific procurement opportunities to minority and women's business organizations.

                         e.  Agency solicitations for bids and proposals shall include information identifying certified minority-owned business enterprises and woman-owned business enterprises engaged in businesses relevant to the contract, and/or advise prospective bidders and proposers where they may obtain such information.

                         f.  In planning procurements, agencies shall, to the extent practical and in accordance with the rules of the procurement policy board, shape the scope, specifications and size of a contract so as to enhance opportunities for certified minority-owned business enterprises and woman-owned business enterprises to participate.

                         g.  In addition to encouraging participation of certified minority-owned business enterprises and woman-owned business enterprises in its contracts by taking the steps described in subdivisions a through f of this section, the following techniques may be used by an agency, as appropriate, to achieve the goals set forth in its approved agency minority and woman-owned business enterprise utilization plan:

                         1.  Establishing a utilization requirement for participation of certified minority-owned business enterprises or woman-owned business enterprises in a contract, in accordance with section 22-812 of this chapter.

                         2.  Assigning credit for participation of certified minority-owned business enterprises or woman-owned business enterprises in evaluating proposals for contracts to be awarded through a competitive sealed proposal procedure, as described in section 22-813 of this chapter.  This technique may be used alone or in combination with the utilization requirements described in section 22-812 of this chapter.

                         3.  Utilizing targeted solicitations for purchases above the small purchase level, as described in section 22-814 of this chapter, in soliciting bids or proposals for contracts for goods and services for an amount of $10,000 or more, or for construction for an amount of $15,000 or more.

                         4.  Utilizing targeted solicitations for small purchases as described in subdivision b of section 22-815 of this chapter for contracts for goods and services for an amount under $10,000, or construction for an amount under $15,000.

                         §22-812  Contracts subject to minority-owned business enterprise and/or woman-owned business enterprise utilization requirements. a.  Agencies may establish utilization requirements for certified minority-owned business enterprises and/or woman-owned business enterprises in individual contracts.  The utilization requirements established for an individual contract may be less than, the same as, or greater than the relevant citywide goal or goals set forth in section 22-807 of this chapter.  In determining the level of minority-owned business enterprise or woman-owned business enterprise utilization that is to be required for a particular contract, agencies shall consider the following factors:

                         1.  the scope of work;

                         2.  the number and types of certified minority-owned business enterprises and woman-owned business enterprises available to perform such work, or portions of it, as indicated in the directory;

                         3.  whether the agency has structured the contract to create potential opportunities for certified minority-owned business enterprises and woman-owned business enterprises to act as participants in a joint venture, as subcontractors, service providers or suppliers, and the percentage of the dollar amount of the contract such opportunities should represent;

                         4.  the level of participation of certified minority-owned business enterprises and woman-owned business enterprises in similar contracts awarded by the agency, other city agencies, and on local projects awarded by the State and federal governments in the previous and current fiscal years; and

                         5.  the agency's progress to date toward meeting its annual goals for the participation of certified minority-owned business enterprises and/or woman-owned business enterprises, and the agency's expectations as to how future contracts will be used toward meeting such goals.

                         b.  A contractor may meet the utilization requirements for the contract in one or more of the following ways:

                         1.  The contractor may subcontract work to certified businesses, in which case the dollar amount of work to be paid to the certified businesses shall be credited toward the contractor's attainment of the relevant requirement.

                         2.  The contractor may enter into a joint venture agreement with one or more certified businesses, in which case the percentage of the total dollar amount of the contract which is proportionate to the percentage of the total profit from the contract to which the certified businesses are entitled, as stated in the joint venture agreement, shall be credited toward the contractor's attainment of the relevant requirement.

                         3.  If the contracting agency has indicated in the solicitation of bids or proposals that the purchase of classes of supplies or services from a certified business may be used for this purpose, the dollar amount a contractor pays to purchase such supplies or services from a certified business shall be credited toward attainment of the requirement.

                         A prime contractor which is itself a certified business may not count its own participation in the contract toward the attainment of a utilization requirement.  A contracting agency may use the techniques described in section 22-813 through section 22-815 of this chapter to encourage participation of certified businesses as contractors.

                         c.  When advertising to solicit bids or proposals for a contract for which a utilization requirement has been established, agencies shall include in the advertisement a general statement that the contract will be subject to utilization requirements for participation of certified minority-owned business enterprises and/or woman-owned business enterprises.  Agencies shall notify bidders and proposers in bid documents or requests for proposals of the specific utilization requirements established for individual contracts.

                         d.  Agencies shall determine prior to issuing an invitation to bid or a request for proposals, and shall state in the invitation to bid or request for proposals, whether bidders or proposers shall be required to meet the utilization requirements set forth in the solicitation as a material term of the contract. In addition, the invitation or request shall state whether bidders or proposers:

                         1.  shall be required to identify in their bids or proposals the certified businesses that shall be engaged to achieve the utilization requirements; or

                         2.  shall be required to identify, by a date to be established in the contract, the certified businesses that shall be engaged to achieve the utilization requirements.

                         e.  In the case of contracts for which the contracting agency has determined that bidders or proposers must identify in their bids or proposals the certified businesses that shall be engaged to achieve the requirements established for the contract:

                         1.  Within the period established for such purpose by the bid documents, request for proposals or other information provided to bidders and proposers by the contracting agency, bidders or proposers shall submit a contractor utilization plan indicating:

                         (i)   the type of work to be performed by certified businesses, and the amounts each is to be paid for such work;

                         (ii)   the name and employer identification number or the social security number of each certified business that will perform such work;

                         (iii)   verification letters from each such certified business evidencing that it has agreed to enter into a formal agreement for the work, and indicating the price agreed upon for such work; and

                         (iv)   where required by the contracting agency, the time frames when work to be performed by each such certified business is scheduled to begin and end.

                         2.  A bid or proposal which does not meet the utilization requirements established for the contract shall be rejected as non-responsive.

                         f.  In the case of contracts for which the contracting agency has determined that bidders or proposers shall be required to identify, by a date to be established in the contract, the certified businesses that shall be utilized to achieve the utilization requirements:

                         1.  Within the period established for such purpose by the bid documents, request for proposals or other information provided to bidders or proposers by the contracting agency, bidders or proposers shall submit a contractor utilization plan indicating:

                         (i)  a description of the type and dollar value of work to be performed by certified businesses.  With regard to this requirement, the plan may identify in the alternative parts of the work that may be used to fulfill the requirements for participation by certified businesses;

                         (ii)  where required by the contracting agency, the time when work to be performed by certified businesses is scheduled to begin and end; and

                         (iii) the manner in which the bidder or proposer intends to secure certified businesses to perform such work.

                         2.  A bid or proposal that fails to designate portions of the work in which there will be participation by certified businesses sufficient to meet the utilization requirements established for the contract shall be rejected as non-responsive.

                         3.  Within the time period established for such purpose in the contract, the contractor shall identify to the contracting agency the names and employer identification numbers or social security numbers of the certified businesses that will be participating in the contract, and the amounts each is be paid for such work.

                         g.  A contractor that fails to meet the utilization requirements set forth in its contractor utilization plan shall be subject to revocation, unless the contracting agency has granted a modification of such requirements pursuant to the procedure set forth in section 22-820 of this chapter.

                         §22-813  Competitive sealed proposals - minority and woman-owned business enterprise participation as an evaluation criterion. a.  A contracting agency may state in a request for proposals that participation by certified businesses or qualified joint business ventures as contractors will be one of the criteria used to evaluate a proposal.  The weight to be given this criterion for each contract shall be determined by the contracting agency.  A graduate minority-owned business enterprise or woman-owned business enterprise shall be ineligible to receive any points awarded in an evaluation pursuant to this subdivision.

                         b.  A contracting agency may state in a request for proposals that the level of participation by certified businesses as subcontractors, suppliers or service providers in a contract shall be one of its proposal evaluation criteria.  In evaluating proposals for such a contract the agency shall establish a weighted criterion for participation by certified minority-owned business enterprises and/or woman-owned business enterprises, and shall calculate the points to be given to each proposer for that criterion based upon the percentage of the total contract price to be paid to certified minority-owned business enterprises and/or woman-owned business enterprises.  The weight to be given the criterion described in this subdivision relative to other criteria used to evaluate the proposals shall be determined by the contracting agency for each contract, on a case by case basis.

                         c. The technique described in this section may be used together with the technique described in section 22-812 of this chapter concerning the establishment of utilization requirements, in order to provide proposers an incentive for exceeding the utilization requirements established for the contract.  The two techniques shall work together as follows:

                         1.  An agency shall state in its solicitation of proposals that all proposers must meet the utilization requirements established for the contract.  A proposer must show how it will meet such requirements, as specified in section 22-812 of this chapter, or its proposal shall be rejected as non-responsive.

                         2.  The agency shall also state in the solicitation that points shall be given in evaluating the proposals received for any participation of certified minority-owned business enterprises and/or woman-owned business enterprises at a level exceeding the utilization requirements.  As set forth in section 22-812 of this chapter, a certified contractor's participation in the contract shall not be considered in determining whether its proposals satisfies the utilization requirements.

                         d.  Where a proposer seeks to earn evaluation points pursuant to subdivision b or c of this section, it shall include in its proposal a contractor utilization plan which shall indicate:

                         1.  the type and dollar value of work to be performed by certified minority-owned business enterprises and/or woman-owned business enterprises (including the prime contractor, if it is a certified business), and the amounts to be paid for such work;

                         2.  the name and employer identification number or the social security number of each certified minority-owned business enterprise and woman-owned business enterprise that will perform such work;

                         3.  verification letters from each such minority-owned business enterprise and woman-owned business enterprise that has agreed to enter into a formal agreement for the work; and

                         4.  where required by the contracting agency, the dates when work to be performed by each minority-owned business enterprise and woman-owned business enterprise is scheduled to begin and end.

                         Such proposer's utilization plan shall be incorporated in any contract awarded to it pursuant to such subdivision.

                         §22-814  Targeted solicitations for contracts above the small purchase level. a. An agency head may designate individual procurements or categories of procurements of goods or services in an amount of $10,000 or more, or of construction in an amount of $15,000 or more, as procurements for which bids or proposals shall be solicited only from certified businesses, and qualified joint ventures which include certified businesses.  Agencies may solicit bids or proposals only from certified businesses that are on a list of prequalified vendors, and qualified joint ventures that include certified businesses that are on such prequalified vendor lists.

                         b.  When using this technique, the agency chief contracting officer shall establish a list of prequalified certified businesses in the following manner:

                         1.  The agency chief contracting officer may determine that the need for advance screening of  qualifications outweighs the benefits of a broader search for competition pursuant to section 3-11(d) of the rules of the procurement policy board, on the basis of a finding that a targeted solicitation to certified minority-owned business enterprises and/or woman-owned business enterprises and qualified joint ventures which include certified minority-owned business enterprises and/or woman-owned business enterprises is necessary to enable the agency to discharge its responsibility to secure the meaningful participation of certified businesses in the agency's procurements, as prescribed by section 1304 of the charter and this chapter.  The agency chief contracting officer's determination must be supported by findings that on at least two prior occasions the contracting agency has attempted unsuccessfully to involve certified minority-owned business enterprises and/or woman-owned business enterprises as contractors on contracts for the category of goods, services or construction involved in the subject contract, using other techniques described in the rules of the procurement policy board and this chapter, and by a finding that, based on the agency chief contracting officer's knowledge of the market, the targeted solicitation will generate adequate competition for the procurement.

                         2.  In establishing the list of prequalified vendors for the procurement, the agency chief contracting officer shall consider whether the firm has been certified by the division of economic and financial opportunity pursuant to this chapter (or in the case of a joint venture, whether such a certified business has an interest of 25 percent or more in the venture, as described in section 22-801 of this chapter), and such other general criteria set forth in section 3-11(e) of the rules of the procurement policy board as are appropriate.

                         c.  The determination to employ this technique for a particular procurement or category of procurement, including the findings supporting the determination, shall be made in writing by the Agency Chief Contracting Officer, and must be approved in writing by the city Chief Procurement Officer.  The determination shall be valid for a period of two years from the date the determination was made; at that time, the agency shall review the need to continue to use this technique and advise the division of economic and financial opportunity of the results of such determination.

                         d.  If the contracting agency does not receive at least three responsive bids from certified business that were solicited pursuant to this section, it shall reject all bids and relet the contract.  Any certified business that submitted bids shall have the opportunity to submit new bids if the contract is relet.

                         e.  The technique described in this section shall not be used for contracts in excess of five million dollars unless such use has been approved in writing by the city Chief Procurement Officer.

                         f.  A graduate minority-owned business enterprise or woman-owned business enterprise shall be ineligible to compete for a targeted solicitation pursuant to this section.

                         §22-815  Small purchases. a. Whenever an agency is soliciting bids for a contract for goods or services in an amount between $500 and $10,000 or a contract for construction in an amount between $500 and $15,000, and the agency is not using the small purchase targeted solicitation technique described in subdivision b of this section, the agency shall invite a number of certified minority-owned business enterprises and/or woman-owned business enterprises to bid that is equal to or greater than the number of non-certified business invited to bid, provided that if the agency has solicited bids from all certified minority-owned business enterprises and woman-owned business enterprises engaged in the business involved in the contract that are known to the agency, the agency may solicit bids from any number of non-certified business.  In circumstances where the rules of the procurement policy board require that solicitations for bids be done on a random basis, firms to be solicited for such contracts shall be selected from a list of certified businesses and a list of non-certified businesses.  Such selections from these lists shall be made at random.

                         b.  Targeted solicitations for small purchases.  1.  An agency head may designate individual procurements of goods or services for amounts under $10,000, or of construction for amounts under $15,000, as procurements for which bids shall be solicited only from certified minority-owned business enterprises and/or woman-owned business enterprises.  Where applicable rules of the procurement policy board require random selection of bidders for a contract, the firms to be solicited shall be selected at random from the list of available certified businesses.

                         2. The technique described in this subdivision shall be used only when the agency minority and woman-owned business enterprise officer has made a determination, which shall be documented in writing, that on at least two prior occasions he contracting agency has attempted unsuccessfully to obtain participation of certified minority-owned business enterprises and/or woman-owned business enterprises as prime contractor, in contracts for the category of goods, services or construction involved in the subject contract, using other techniques described in this chapter and the rules of the procurement policy board.  The agency minority and woman-owned business enterprise officer shall notify the division of economic and financial opportunity of the agency determination to employ this technique.  Such determination shall be valid for a period of two years from the date it was made; at that time, the agency shall review the need to continue the use of this technique and advise the division of economic and financial opportunity of the results of such determination.

                         3.  If the contracting agency does not receive at least two responsive bids from certified business that were solicited pursuant to this section, it shall solicit bids from at least three other firms before it makes the determination  as to which firm will be awarded the contract.

                         4.  A graduate minority-owned business enterprise or woman-owned business enterprise shall be ineligible to compete for a targeted solicitation pursuant to this section.

                         §22-816  Agency minority and woman-owned business enterprise utilization plans. (a) Each agency shall prepare an annual minority and woman-owned business enterprise utilization plan for that agency's procurement which shall be submitted to the commissioner.  In preparing its plan, each agency shall consider how certified minority-owned business enterprises and woman-owned business enterprises can be used in all facets of its procurements.  The agency minority and woman-owned business enterprise utilization plans shall be submitted by a date to be determined by the commissioner, which shall take into account the city's budget adoption process.  The agency minority and woman-owned business enterprise utilization plan include the following information:

                         1.  Separate agency goals for participation by certified minority-owned business enterprises and woman-owned business enterprises in the agency's procurements for the upcoming fiscal year, expressed as a percentage of the agency's total expenditures during the fiscal year for procurements to which this chapter is applicable, for each of the following categories:

                         (i)    Procurement of goods;

                         (ii)   Procurement of services; and

                         (iii)  Procurement of construction.

                         2.  An explanation for any agency goal that is different from the citywide goal for the relevant category of procurement.

                         3.  A list of the names and titles of agency supervisory personnel responsible for implementation of the agency minority and woman-owned business enterprise utilization plan.

                         4. Any other information which the agency or the commissioner deems relevant or necessary.

                         b. The commissioner shall notify each agency in writing when its agency minority and woman-owned business enterprise utilization plan has been approved.  Such notice shall be sent to the agency within forty-five days of the submission of its plan, unless the commissioner has identified deficiencies in the plan, in which case the commissioner shall notify the agency of any such deficiencies within such forty-five day period.

                         c.  If the commissioner has not approved an agency's plan, the agency shall be notified in writing of the reasons therefor. The agency, within thirty days of such notice, may request a conference with the commissioner and the city chief procurement officer to discuss modifications necessary to obtain approval for the plan.

                         d.  The agency shall resubmit its plan to the commissioner within thirty days of receipt of a notice that the plan was not approved or after the conference provided for in subdivision c of this section, whichever is later.

                         e.  An agency minority and woman-owned business enterprise utilization plan may be amended from time to time to reflect changes in the agency's projected expenditures or other relevant circumstances, and corresponding changes in the agency's annual goals. Amendments shall be subject to approval by the commissioner in accordance with the provisions of this section.

                         §22-817  Agency Compliance Reporting.  a. Agencies shall require all contractors to identify all subcontractors they employ with respect to a contract, and whether they are certified pursuant to this chapter.

                         b.  Agencies shall submit a compliance report, in a form and manner prescribed by the commissioner, within thirty days from the end of each quarter of the fiscal year, except that the report for the last quarter of the fiscal year shall be due within forty-five days from the end of the fiscal year.  The compliance report shall include the following information with respect to the relevant quarter:

                         1.  the number of contracts awarded, and the total dollar amount

paid or to be paid pursuant to such contracts;

                         2.  the number of contracts awarded to certified minority-owned business enterprises and woman-owned business enterprises, and the total dollar amount paid or to be paid pursuant to such contracts;

                         3.  the number of contracts awarded which include a contractor utilization plan for participation by certified businesses, and the total payments made or projected to be made to such minority-owned business enterprises and woman-owned business enterprises as subcontractors, suppliers or service providers pursuant to such plans;

                         4.  the number and dollar amount of contracts awarded for which a waiver from or modification of utilization requirements was granted, and the particular trade, service, industry or commodity market involved;

                         5.  the agency's evaluation of its progress toward meeting its agency minority and woman-owned business enterprise utilization plan, and any actions it intends to take to address any shortfall in meeting the goals established in such plan; and

                         6.  any other information as may be required by the commissioner.

                         c. Agencies shall submit to the commissioner such other reports as the commissioner may require.

                         d.  Whenever an agency does not solicit bids or proposals from all persons on a bidders list, the agency shall maintain records identifying the certified minority-owned business enterprises and woman-owned business enterprises it solicited by mail, telephone or facsimile machine.  Such records shall be available for inspection by the division of economic and financial opportunity .

                         e.  Agencies shall send to the division of economic and financial opportunity notices of all solicitations for construction contracts involving amounts over one million dollars, and all solicitations for contracts for goods and services involving amounts over five hundred thousand dollars, at the time the first notice of such contract opportunity is submitted to the city record for publication.

                         §22-818  Commissioner's authority to promote achievement of goals. Whenever the commissioner has determined that an agency is not progressing toward its approved goals at a rate that will enable it to obtain them by the end of the fiscal year, the commissioner shall act to bring the agency into compliance with its approved agency minority and woman-owned business enterprise utilization plan, and take any of the following actions which the commissioner determines to be necessary for such purpose:

                         a. Require the agency to submit more frequent reports about its procurement activity;

                         b. Require the agency to notify the commissioner, and with respect to procurements of construction and professional services related to a construction project, a person designated by the mayor to receive such notification, prior to solicitation of bids or proposals for, and/or prior to award of, contracts in any category where the agency has not made adequate progress toward achieving its approved goals; and

                         c. request that the city chief procurement officer direct the agency to utilize a particular procurement technique described in this chapter in order to further the agency's progress toward achieving its goals.

                         §22-819  Compliance with contractor utilization plans. a. For purposes of complying with this statute, the contracting agency shall have the right to disapprove a contractor's selection of subcontractors.  The contracting agency shall allow a contractor a reasonable time to propose alternate subcontractors.

                         b.  A contractor shall not make any change in the participation by certified minority-owned business enterprises and/or woman-owned business enterprises set forth in its contractor utilization plan, unless it has obtained prior written approval from the contracting agency.  The contracting agency shall send written notice to the division of economic and financial opportunity of any such approval involving a reduction in utilization of certified minority-owned business enterprises or woman-owned business enterprises.  Application to the contracting agency for permission to make any change or substitution in a contractor utilization plan shall be made in writing and shall provide an explanation for such request.  The contractor shall certify that a copy of such request has been provided to any certified minority-owned business enterprise or woman-owned business enterprise identified in the approved contractor utilization plan for which it is requesting permission to award less work than was indicated in such plan.  The contracting agency shall make its determination with respect to such request within the time period established for such purpose in the contract, provided that if the contracting agency has failed to make a determination within such time and the parties have not agreed to extend the time allowed for such purpose, the contractor's request shall be deemed to have been denied.  If a contractor's request has been denied, the contractor may seek further consideration by following the procedure for dispute resolution set forth in the rules of the procurement policy board.

                         c.  The contracting agency shall monitor the contractor's compliance with its contractor utilization plan, which may include job site inspections, contacting certified businesses identified in the plan to confirm that they are performing the work, and auditing the contractor's books and records.

                         d.  An agency may include in a contract such provisions concerning compliance reports to be submitted to the agency by a contractor as the agency deems necessary to monitor the contractor's compliance with its contractor utilization plan.  In the case of a contract awarded to a contractor who has agreed to meet utilization requirements established by the agency for the contract, such contract provisions may specify deadlines by which the contractor must have either identified the certified businesses who will participate in the contract or made a request for a modification pursuant to section 22-820 of this chapter.

                         e.  If payments made to, or work performed by, certified business identified in the approved contractor utilization plan are less than the amount specified in the plan, the agency may impose sanctions as provided in section 22-823 of this chapter, unless the contractor has justified to the satisfaction of the contracting agency its failure to adhere to the contractor utilization plan.

                         §22-820  Waiver and modification of minority and woman-owned business enterprise utilization requirements. a.  Petitions for waiver prior to the deadline for submission of bids or proposals.

                         1.  Prior to the deadline for submission of bids or proposals, a potential bidder or proposer may request the contracting agency to grant a full or partial waiver of the minority-owned business enterprise and/or woman-owned business enterprise utilization requirements established for a contract, upon the grounds that the reasonable and necessary requirements of the contract render subcontracting or other participation of businesses other than the bidder or proposer infeasible, or infeasible at the levels required by the utilization requirements established for the contract.  Such request shall be made in writing to the agency's minority and woman-owned business enterprise officer and shall be accompanied by supporting documentation.  The invitation for bids or request for proposals shall establish deadlines for the making of such a waiver request and for the agency's determination of the request.  The deadline for the agency's determination of the request shall be no later than three business days prior to the bid opening date.  If the agency fails to act on such request before such deadline, it shall issue a notice to bidders or proposers extending the deadline for submission of bids or proposals until a reasonable time after such determination has been made.

                         2.  The minority and woman-owned business enterprise officer shall provide the division of economic and financial opportunity written notice of the request for a waiver made pursuant to paragraph (1) of this subdivision.  The division of economic and financial opportunity shall consult with appropriate contractor organizations, including organizations for minority and women contractors, and the division of economic and financial opportunity shall provide advice to the contracting agency as to the merits of the request.  In addition to consulting with the division of economic and financial opportunity , the contracting agency's minority and woman-owned business enterprise officer shall also consult with the city chief procurement officer with respect to contracts for goods or services, and the city chief procurement officer and another  person designated by the mayor to provide such consultation with respect to contracts for construction.

                         3. The minority and woman-owned business enterprise officer shall advise the contracting agency concerning the merits of the petition for waiver.  If the contracting agency finds merit in the request for a waiver, it shall reduce the utilization requirement to the extent warranted.

                         4.  When a contracting agency waives a utilization requirement, it shall provide notice to bidders or proposers of such determination in the same manner as was used originally to provide notice of the opportunity to bid or submit a proposal, prior to the date that bids or proposals are due.  The agency shall provide written notice of such determination and the reasons therefor to the division of economic and financial opportunity and the city chief procurement officer.  In the case of procurements of construction, the agency shall also provide such notice to a person designated by the mayor to receive such notification.

                         b.  Post-award modification.  1. Post-award modifications shall not be granted absent clear and convincing evidence that the contractor has made all reasonable efforts to obtain the participation of certified minority-owned business enterprises and woman-owned business enterprises to meet the utilization requirements set forth in its contractor utilization plan.

                         2.  A request for a post-award modification shall not be granted or denied without the approval of the city chief procurement officer.

                         3.  A contractor may request the contracting agency to grant a post-award modification of the utilization requirements established in its contractor utilization plan, upon the following grounds:

                         (i)   The contractor could not, after having made all reasonable efforts, as described in subdivision (c) of this section, and submitting documentation of such efforts to the agency, identify sufficient certified minority-owned business enterprises and/or woman-owned business enterprises to meet the requirement; or

                         (ii) The contractor has demonstrated that the prices offered by all certified minority-owned business enterprises and/or woman-owned business enterprises were exploitative, in that they significantly exceed prices offered by businesses which are not certified of comparable size thereby indicating that the certified businesses are attempting to earn a profit that exceeds the level typical in the particular industry.  The contractor shall identify in writing the certified businesses from which it solicited bids or proposals.  In determining whether the price offered by a certified business is exploitative, the minority and woman-owned business enterprise officer shall consider the nature of the product or service offered by the certified business; the geographic location of the site where the work is to be performed and the principal business address of the certified business; prices of similar products or services in the market area; whether the price offered by the certified business reflects the certified business's cost of doing business and evidence that discrimination affects minority and woman-owned business enterprises' cost of doing business in the market involved.

                         4.  The minority and woman-owned business enterprise officer shall provide the division of economic and financial opportunity and the city chief procurement officer written notice of the request for a post-award modification.  In the case of a contract for construction or professional services related to construction, the minority and woman-owned business enterprise officer shall also provide such notice to director of the mayor's office of contracts to receive such notification.  The division of economic and financial opportunity and the minority and woman-owned business enterprise officer shall consult with appropriate contractor organizations, including organizations for minority and women contractors, and provide advice to the contracting agency as to the merits of the request.

                         5.  In reviewing a request for a post-award modification, the contracting agency's minority and woman-owned business enterprise officer shall consider whether it is feasible for the contractor to achieve the utilization requirement established for the contract by substituting portions of the scope of work intended to be used for such purpose.

                         6.  If, after having considered the contractor's efforts to achieve the requirement, and any other efforts that could be used to achieve the requirement in accordance with the original contractor utilization plan or a revised contractor utilization plan, the minority and woman-owned business enterprise officer finds merit in the request for a post-award modification, and the city chief procurement officer approves such determination, the minority and woman-owned business enterprise Officer shall reduce the requirement established for the contract consistent with the basis upon which the modification was granted.

                         7.  The contracting agency shall make a determination with respect to a request for a post-award modification within the time set forth for such purpose in the contract; provided that if the contracting agency officer has not made a determination within such time and the parties have not agreed to extend the time for making such determination, the contracting agency shall be deemed to have denied the request.  The minority and woman-owned business enterprise officer shall provide written notice to the contractor of the determination with respect to its request for a post-award modification.  In addition, written notice of such determination and the reasons therefor shall be sent to the division of economic and financial opportunity.  In the case of a modification of utilization requirements in a construction contract, the minority and woman-owned business enterprise officer shall also provide such notice to the director of the mayor's office of contracts.

                         c.  In determining whether a contractor has made all reasonable efforts to obtain participation of certified minority-owned business enterprises and woman-owned business enterprises, the contractor shall present documentation showing that the following efforts, as applicable, have been undertaken, along with any other relevant factors:

                         1.  the contractor advertised opportunities to participate in the contract, where appropriate, in general circulation media, trade and professional association publications and small business media, and publications of minority and women's business organizations;

                         2.  the contractor provided notice of specific opportunities to participate in the contract, in a timely manner, to minority and women's business organizations;

                         3.  the contractor sent written notices, in a timely manner, by certified mail or facsimile machine, to advise certified minority-owned business enterprises and woman-owned business enterprises to solicit interest in the contract;

                         4.  the contractor made efforts to identify portions of the work that could be substituted for portions originally designated for certified minority-owned business enterprise and or woman-owned business enterprise participation in the contractor utilization plan, and for which the contractor claims an inability to retain certified minority-owned business enterprises and/or woman-owned business enterprises;

                         5.  the contractor held meetings with representatives of certified minority-owned business enterprises and/or woman-owned business enterprises prior to the date their bids or proposals were due, for the purpose of explaining in detail the scope and requirements of the work for which their bids or proposals were solicited;

                         6.  the contractor made efforts to negotiate with certified minority-owned business enterprises and woman-owned business enterprises to perform specific subcontracts, or act as suppliers or service providers.  Documentation of these efforts shall include at a minimum:

                         (i) the names, addresses and telephone numbers of certified businesses that were contacted; (ii) a description of the information provided to such businesses regarding the plans and specifications for portions of the work is to be performed; (iii) an explanation why no agreement was reached with any such business enterprises, including the reason why any business enterprise was rejected; and (iv) a description of efforts made to provide technical assistance to certified businesses in order for them to obtain necessary insurance, and/or to obtain necessary supplies at the best prices available; and

                         7.  proof of timely requests for assistance made by the contractor to the agency minority and woman-owned business enterprise officer and to the division of economic and financial opportunity; and

                         8.  a description of how recommendations made to the contractor by the division of economic and financial opportunity and the contracting agency were acted upon and an explanation of why action upon such recommendations did not lead to the desired level of participation of certified minority-owned business enterprises and/or woman-owned business enterprises.

                         §22-821 Prequalification. Any agency establishing a list of prequalified bidders or proposers may deny Prequalification to prospective contractors who fail to demonstrate in their application for Prequalification that they have complied with applicable federal, State and local requirements for participation of minority-owned business enterprises and woman-owned business enterprises in procurements.  A denial of Prequalification may be appealed pursuant to the rules of the procurement policy board.

                         §22-822 Complaints. a. Any person who believes that a violation of any provision of a contract that implements this chapter has occurred, may submit a complaint in writing to the division of economic and financial opportunity or to the contracting agency.  The division of economic and financial opportunity shall submit a copy of the complaint to the contracting agency.  The date of receipt of the complaint shall be recorded and a file on the complaint maintained.

                         b.  A contracting agency that receives a complaint shall forward a copy of the complaint to the division of economic and financial opportunity .

                         c.  Any complaint alleging fraud, corruption or other criminal behavior on the part of a bidder, proposer, contractor, subcontractor or supplier shall be referred to the department of investigation by the department.

                         d.  The contractor, and any subcontractor, supplier, or service provider involved, shall cooperate fully with any investigation conducted by the department of investigation or the division of economic and financial opportunity or an agency to determine compliance with this chapter.  Failure or refusal to furnish information or to cooperate in the investigation shall be cause for imposing sanctions.  As used in this section, "cooperation" includes, but is not limited to, providing testimony and producing book, records and other documents and tangible things.

                         e.  The contracting agency and the division of economic and financial opportunity shall determine, in consultation with the department of investigation where appropriate, which agency shall investigate the complaint, provided that in the case of any complaint alleging fraud, corruption or other criminal activity, the department of investigation shall investigate the complaint, and the contracting agency and the division of economic and financial opportunity shall cooperate in such investigation as requested by the department.  Upon completion of an investigation conducted by the contracting agency or the division of economic and financial opportunity, the complainant, the contractor, and any subcontractor or supplier involved, shall be informed of the results in writing.  In the case of an investigation conducted by the department of investigation, the department shall provide such notice to the entities subject to the investigation as it determines appropriate.

                         f.  If there is reasonable cause to believe that a bidder, proposer, contractor, subcontractor or supplier has violated this chapter or any relevant provision of a contract pursuant to this chapter, the division of economic and financial opportunity or the contracting agency shall take appropriate action pursuant to section 22-824 or section 22-825 of this chapter.

                         g.  No person shall intimidate, threaten, coerce or discriminate against any individual or business for the purpose of interfering with the implementation or enforcement of any provision of this chapter, or because such individual or business filed a complaint or cooperated in the investigation of a complaint.

                         §22-823  Enforcement - contract award process. a.  Whenever a bidder or proposer has submitted a bid or proposal that is not in compliance with the requirements established for a contract pursuant to this chapter, the contracting agency shall reject the bid or proposal as non-responsive.

                         b.  In determining whether a bidder or proposer is responsible, a contracting agency shall consider information related to such person's compliance with this chapter.

                         c.  A bidder or proposer may appeal a determination of non-responsiveness or non-responsibility in accordance with the applicable rules of the procurement policy board.  When an agency receives such an appeal that is based on a determination related to this chapter, the agency shall send copies of the appeal documents immediately to the division of economic and financial opportunity and upon a decision on the appeal, shall immediately forward the agency head's decision on the appeal to the division of economic and financial opportunity .

                         d.  A bidder or proposer may protest a determination regarding the solicitation or award of a procurement in accordance with applicable rules of the procurement policy board.  When an agency receives such a protest that is based on a determination related to this chapter, the agency shall send copies of the protest and any appeal thereof, and any decisions made on the protest or such appeal, to the division of economic and financial opportunity .

                         e.  If, before a contract is awarded, it is determined that a solicitation is in violation of this chapter, the solicitation shall be cancelled or revised to comply with this chapter.  Notice of such action shall be sent to the division of economic and financial opportunity.

                         f.  If, after a contract is awarded, it is determined that a solicitation or award is in violation of this chapter, and the person awarded the contract has not acted fraudulently or in bad faith,

                         1.  the contract may be ratified, provided that the agency head makes a written determination that doing so is in the best interests of the city; or

                         2.  the contract may be terminated by the agency head and the contractor shall be compensated for the direct, out-of-pocket expenses reasonably incurred under the contract.  This shall not include overhead, other indirect costs or profit.  This remedy is not exclusive of other remedies provided for in the contract or by law.

                         3. Notice of any action taken pursuant to this subdivision shall be sent the division of economic and financial opportunity .

                         g.  If, after a contract is awarded, it is determined that a solicitation or award is in violation of this chapter, and the person awarded the contract acted fraudulently or in bad faith,

    1.the contract shall be declared null and void by the agency head; or

     2. the contract may be ratified by the agency head if such action is in the best interests of the city, without prejudice to the city's rights to such damages as may be appropriate.

                         3. Notice of any action taken pursuant to this subdivision shall be sent to the division of economic and financial opportunity .

                         h.  Whenever a contracting agency has determined that a bidder or proposer has violated any provision of this chapter, the agency may:

                         1. Revoke such bidder's or proposer's Prequalification to bid or make proposals for future contracts; or

                         2.  Initiate a debarment proceeding in accordance with the rules of the procurement policy board.

                         §22-824 Enforcement - contract administration. a.  Whenever a contracting agency has reasonable cause to believe that a contractor, or a subcontractor or supplier involved in a contract, is not in compliance with this chapter, or any provision of a contract implementing this chapter, the agency shall send a written notice to the division of economic and financial opportunity , the contractor, and any such other person describing the alleged noncompliance, and offering an opportunity to respond to the contracting agency.

                         b.  In the event that a contractor has been found not to have complied with any provision of a contract implementing this chapter, the contracting agency may take one or more of the following actions:

                         1.  Enter an agreement with the contractor allowing the contractor to cure the violation;

                         2.  Revoke the contractor's Prequalification to bid or make proposals for future contracts;

                         3.  Initiate a debarment proceeding in accordance with the rules of the procurement policy board;

                         4.  Make a finding that the contractor is in default;

                         5.  Terminate the contract;

                         6.  Declare the contractor to be in breach of contract;

                         7.  Withhold payment or reimbursement;

                         8.  Determine not to renew the contract;

                         9.  Assess actual and consequential damages;

                         10. Assess liquidated damages or a reduction of fees;

                         11. Exercise rights under the contract to procure goods, services or construction from another contractor and charge the additional costs of such contract borne by the city to the contractor that has been found to be in noncompliance.

                         c.  A contractor may seek resolution of a dispute arising out of contract administration related to this chapter, or any provision of a contract implementing this chapter, by presenting its dispute in a written submission to the appropriate official of the contracting agency, in accordance with applicable rules of the procurement policy board.  The contracting agency shall submit a copy of such submission to the division of economic and financial opportunity, and shall follow the procedure set forth in the rules of the procurement policy board concerning resolution of disputes arising out of contract administration, as applicable.  A copy of the agency head's decision on the dispute and any intended sanction shall be sent to the division of economic and financial opportunity.  Before an agency imposes any sanction provided for in subdivision b of this section, it shall also send a copy of the proposed sanction to the commissioner, who shall respond to the agency, within five days of receiving such notice, with such modifications of the agency's determination as the commissioner deems necessary to ensure compliance with this chapter.

                         d.  Whenever an agency has reason to believe that a certified minority-owned business enterprise or woman-owned business enterprise is not qualified for certification, or is participating in a contract in a manner that does not serve a commercially useful function, or has violated any provision of this chapter, the agency shall send a notice to the commissioner, who shall determine whether the certification of such firm should be revoked, in accordance with the procedure set forth in section 22-826 of this chapter.

                         e.  The contractor shall certify that all documents are truthful and accurate to the knowledge of the contractor.  The making of any statement in any document submitted pursuant to this chapter which contains a knowingly false or misleading statement or omission shall be cause for a determination of noncompliance with this chapter.  The omission or false or misleading statement by a certified business shall be grounds for revocation of its certification.

                         f. Whenever sanctions are imposed against any person pursuant to this chapter, the contracting agency shall notify the commissioner, the city chief procurement officer and the department of investigation.

                         g.  A contractor's record in implementing its contractor utilization plan shall be a factor in the evaluation of its performance prepared pursuant to the rules of the procurement policy board.  Whenever a contracting agency determines that a contractor's compliance with a contractor utilization plan has been unsatisfactory, the agency shall file an advice of caution form for inclusion in the VENDEX database pursuant to section 6-01 of the rules of the procurement policy board.  A copy of such form shall be forwarded to the division of economic and financial opportunity .

                         §22-825 Revocation of minority-owned business enterprise or woman-owned business enterprise certification. Whenever the commissioner has reason to believe that a business that has been certified as a minority-owned business enterprise or woman-owned business enterprise pursuant to this chapter has violated any provision of this chapter, the commissioner shall notify such business of the allegations against it offer the business an opportunity to respond, and make a determination as to whether the business shall continue to be certified in accordance with the provisions of section 22-806 of this chapter.

                         §22-826 Procurements by elected officials and certain agencies. In the case of procurements by independently elected city officials other than the mayor, members of the council and the council itself, where this chapter provide for any action to be taken by the city chief procurement officer, such action shall instead be taken by such elected officials.

                         §22-827 Applicability. a.  This chapter applies to all procurements of goods, services or construction by agencies of the city of New York, except:

                         1.  procurements that are subject to requirements imposed by federal or state law concerning participation by minority-owned and woman-owned businesses, provided, however, that the procedures described in this chapter may be used to satisfy such requirements of federal or state law to the extent consistent with such laws;

                         2. contracts between city agencies and contracts between city agencies and other governmental bodies;

                         3. procurements made through the United States General Services Administration or another federal agency, or through the New York State Office of General Services or another State agency;

                         4.  procurements made by contract awarded to not-for-profit organizations;

                         5.  procurements of public utilities services; and

                         6.  any other type of procurement to which the commissioner determines by rule that application  would not in the best interests of city.

                         b.  The commissioner, upon making a determination that women and/or any minority group as a class have not been discriminated against in their ownership and operation of a business in a particular trade, industry, service, or commodity market within the geographic market of the city, or are no longer disadvantaged in that geographic market by the effects of any such discrimination in the past, may promulgate a rule excluding procurements involving goods, services or construction in such trade, industry, service or commodity market from the

application .  The commissioner may make such a determination upon his or her own initiative, or upon a petition from any member of the public.

                         §22-828 Graduate minority and woman-owned business enterprise provision. a. Graduate minority-owned business enterprises and/or woman-owned business enterprises, as defined in subdivisions (b) and (c) of this section, shall be ineligible to receive additional points on competitive sealed proposals pursuant to section 22-813(a) of this chapter or to receive a contract awarded pursuant to a targeted solicitation under section 22-814 and section 22-815 of this chapter.

                         b.  Except as provided in subdivision (c) of this section, a certified minority-owned business enterprise or woman-owned business enterprise shall be deemed to be a graduate minority-owned business enterprise or woman-owned business enterprise if it has maintained annual gross receipts for two consecutive years that are in excess of $17 million dollars.

                         c.  The commissioner, in his or her discretion, may by rule set a higher threshold of annual gross receipts for deeming certified minority-owned business enterprises and/or woman-owned business enterprises in a particular trade, industry, service, or commodity market to be graduate minority-owned business enterprises and/or woman-owned business enterprises.  Such a determination shall be based on a demonstration that minority-owned business enterprises and/or in that trade, industry, service or commodity market continue to be disadvantaged by the impact of discrimination within the geographic market of the city, even though they have achieved the level of income described in subdivision b of this section.  For any such trade, industry, service, or commodity market, the commissioner shall establish a threshold for classification as a graduate minority-owned business enterprise or woman-owned business enterprise that reflects the level of income above which such businesses may be presumed not to continue to require such benefits in order to overcome the impact of discrimination within the geographic market of the city.  Those persons seeking a higher graduate minority-owned business enterprise or woman-owned business enterprise threshold of annual gross receipts for certified minority-owned business enterprises and/or woman-owned business enterprises in a particular trade, industry, service or commodity market may petition the commissioner to commence a rulemaking procedure for such purpose.

                         §22-829 Contract dates. This chapter shall apply to:

                         a. procurements for which solicitation of bids or proposals is initiated on and after the effective date of this chapter, and

                         b. any procurements for which solicitation of bids or proposals was initiated prior to the effective date of this chapter, where the solicitation is amended prior to the deadline for submission of bids or proposals, to incorporate any provision concerning participation by certified minority-owned business enterprises and/or woman-owned business enterprises authorized for procurements subject to this chapter.

                     §22-830                     Severability.                     If any provision of this chapter, or the application thereof, is held invalid, the remainder of this

chapter, and the application thereof to other persons and circumstances shall not be affected by such holding and shall remain in full force and effect.

                     §2.                     This local law shall take effect immediately and shall expire on June 30, 2001, except that, if this local law is enacted subsequent June 30, 1998 it shall be deemed to have been in full force and effect on such date and provided that all certifications in effect on June 30, 1998 shall remain in full force and effect.

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