Minority and Women-owned Business Enterprises (MWBE) Program DOS Guide to the MWBE Program and Article 15-A Compliance in Contracting 2/26/20 2/26/20 We Will Cover: Agencys MWBE Responsibilities Grantees/Contractors MWBE Contractual Requirements Assessing MWBE Goal MWBE Compliance Monitoring MWBE Waiver Request Process and Documented Good Faith Efforts (GFE) Support To Grantees In Their Compliance Efforts
2 2/26/20 Agencys Responsibilities regarding MWBE 3 2/26/20 4 Responsibilities We All Make It Happen! Division of Affirmative Action Programs Charged with overseeing DOS compliance with Article 15-A, reporting to the SOS/Executive team on MWBE matters, representing DOS at Chambers, ESD and other
organizations, reporting compliance to the Division of Minority and Women Business Development, facilitating the participation of MWBEs in our procurement, coordinating with Programs the monitoring of grantees compliance, making determinations on waiver requests and investigating breaches of compliance with MWBE program requirements. Division of Fiscal Management Oversees the Agencys procurement, contracting and financial processes for all contracts. Provide data for MWBE Goal Plans, Quarterly Utilization Reports and others. DOS Programs Coordinate with MWBE Program to set up MWBE goals; monitor and support grantees compliance with MWBE contract goals; assist MWBE Program and grantees in the resolution of any non-compliance or reporting issues. 2/26/20 Grantees/ Contractors Responsibilities
5 2/26/20 6 Good Faith Efforts & Compliance with MWBE Goals Contractors are required to make Good Faith Efforts (GFE) to provide meaningful participation to MWBEs as subcontractors or suppliers in the performance of their Contracts and to comply with MWBE goal. If Contractor is found to have willfully and intentionally failed to comply with the MWBE participation goal set forth in the Contract, this constitutes a breach of Contract and the Contractor shall be liable to the Department for liquidated or other
appropriate damages. Only the use of New York State-certified M/WBEs counts towards meeting the MWBE goals (The NYS M/WBE Directory is located at: https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp). Grantees must coordinate with Project Managers, when they cannot meet the MWBE goals, and submit documented justification of GFE for a waiver request. Note: Grantees can reach out to the MWBE Program for assistance with finding certified MWBE firms. 2/26/20
MWBE Forms Grantees must submit Forms A, B and D/D-1 before contract execution Form A - MWBE - EEO Policy Statement Form B - Staffing Plan (for contracts over $250,000) Form D - MWBE Utilization Plan (In case the grantee has already selected their MWBE vendors) or Form D-1 Compliance Certification Letter (In case the grantee has not yet selected their MWBE vendors) Grantees must submit Forms C and F on a quarterly basis Form C - Workforce Utilization Report Form F - Quarterly MWBE Contractor Compliance Report
Grantees will submit Form E, in coordination with Programs, when they have made everything possible to meet the goals but were unable to comply with the requirement. 7 2/26/20 8 Submission of MWBE Utilization Plans Grantees are required to submit an MWBE Utilization Plan or a Certification Letter within ten (10) business days after they receive notice from DOS that they have been awarded grants.
The Certification Letter states grantees commitment to show due-diligence to comply with the MWBE goals and applies when grantees do not know their subcontractors. Grantees must notify the MWBE Program within two weeks following the selection of any vendor or subcontractor. Any modifications or changes to an accepted MWBE Utilization Plan after the contract award and during the term of the contract must be reported on a revised MWBE Utilization Plan and submitted to DOS for review and approval. See attached Utilization Plan Submission Process Flowchart 2/26/20 Assessing MWBE Goals
9 2/26/20 10 MWBE Goal Calculation The MWBE applicable amount is based on the portion of the budget assigned for services to be contracted out and equipment/materials/supplies to be purchased. Exemptions items exempted from master goal plans, including the following; Personal services (i.e. payments to staff for labor), staff benefits, training; Travel reimbursements; Utilities, postage, telephones; Sole source contracts; Operating transfers; Certain rentals and repairs; Unemployment insurance and tuition reimbursement
Exclusions If after thoroughly researching the availability of certified firms and absolutely not finding certified businesses to complete a service or provide specific goods and materials, the particular services, goods or materials may be excluded. Exclusions must be reviewed and accepted by ESD in advance. Note: The portion of matching fund/local share is not included in the goal calculation 2/26/20 11 Calculation Goals Template & Illustration See attached Goals Calculation Template 2/26/20 12
Notes It is imperative that the budget lines do not combine MWBE applicable items and exempted items! Example: Space costs line should not combine rent and janitorial costs. Programs should discuss with grantees to identify opportunities for MWBE participation. If the grantee cannot secure MWBE utilization on an MWBE applicable item (due to an existing contract, MOU. Etc.), a pre-contract waiver request should be processed to remove the items from the goal calculation. If there are no MWBEs available to perform the work needed by the grantee, a pre-contract waiver request should be processed to remove the item from the goal calculation. MWBE applicable items cannot be removed from the goal calculation without an approved waiver request!!!
2/26/20 MWBE Compliance Monitoring 13 2/26/20 14 Utilization Plan Submission Process Within 10 days following notice of the award, the selected grantee: Submits a completed Utilization Plan - Form D or a certification letter.
Within two weeks of completing the selection process, grantee must submit Utilization Plan with subcontractors/vendors selected. Note: The MWBE Program will review and make determination on utilization plans submitted in coordination with Program, and notify Program and Grantees. 2/26/20 15 Contract Compliance Monitoring Process Programs should:
Discuss the MWBE goals with their grantees at initial meetings; Oversee grantees reporting of MWBE utilization on a quarterly basis and report to MWBE Program on any concerns. Notify the MWBE Program/Fiscal about closing and/or amending contracts; Monitor grantees compliance with all MWBE contractual requirements: e.g. utilization of certified MWBEs in the performance of their contracts and reporting on a timely basis. To assist with monitoring, the MWBE Program will provide Programs with quarterly MWBE compliance reports on their contracts. 2/26/20 MWBE Waiver Request Process and Documented Good
Faith Efforts (GFE) 16 2/26/20 17 Waiver Request Process An MWBE waiver is a reduction or elimination of the MWBE goals already established on a contract or prior to contract execution. A waiver request requires the grantee to submit to DOS: A detailed description of the contract program or project
A documented justification demonstrating Good Faith Efforts GFE A completed Form E MWBE Waiver Request Programs should review the request and determine if grantee followed instructions on page 2 of waiver form. Incomplete requests will be returned unprocessed. Note: Waiver requests, full or partial, are not approved until Executive Chamber agrees with DOS determination. 2/26/20 18 Waiver Request Process (Contd) Upon receipt of waiver requests, Programs should ensure that grantees
have documented justification of their good faith efforts before submitting the requests to the MWBE Program. Notes: A waiver request is NOT an alternative to complying with the MWBE requirements or an after thought; and MUST be submitted as soon as the grantee and the Program Manager are aware of the grantees inability to meet the MWBE goals despite the demonstrated GFE. Waiver requests will also be required if the overall MWBE goal is reached or exceeded, but either the MBE or the WBE goal, as specified in the contract, is not met in part or in full. 2/26/20 19 Documented Justification of GFE Includes, but is not limited to (see 5 NYCRR 142.8):
Evidence of outreach to MWBEs: mail, email, phone calls and follow up. Any responses by MWBEs to the grantees outreach; Copies of advertisements for participation by MWBEs in appropriate general circulation, trade, and minority or women-oriented publications; The dates of attendance at any pre-bid, pre-award, or other meetings, if any, scheduled by the grantee with MWBEs; and
Information describing specific steps undertaken by the grantee to reasonably structure the contract scope of work to maximize opportunities for MWBE participation. 2/26/20 20 Documented Justification of GFE (Contd) Searching the Directory of certified MWBE firms, publishing RFPs through various media and sending RFPs to MWBE firms Good but not sufficient to justify GFE
Grantees are required to: Follow up with MWBEs to ensure that they received the RFP, and are aware of the procurement opportunity. Obtain written responses from MWBEs, explaining the reasons for declining the opportunity. Require their subcontractors to engage MWBEs, to undertake part of the projects work or to procure equipment/ materials/supplies.
2/26/20 21 Waiver Request Process (Contd) See attached DOS MWBE Waiver Request Process Flowcharts 2/26/20 Support To Grantees In Their Compliance Efforts 22 2/26/20
23 MWBE Program Assistance: Implements procedures, develops training materials, step by step guides, directives and informational memos for Programs and grantees. Supports Programs efforts to assist grantees and monitor compliance with their contractual requirements, and process the waiver requests as needed. Provides technical assistance so Programs/Grantees have a better understanding of the MWBE requirements, identification of certified MWBE firms, reporting, etc.
Expediting MWBE certification processes for grantees non certified MWBE subcontractors. DOS Programs Assistance: Communicate MWBE requirements to grantees and support their efforts. Monitor grantees compliance with their goal requirements. Support Departments position regarding requirements and grantees non-compliance
2/26/20 24 Takeaways DOS/Grantees are required to comply with provisions of Article 15-A, MWBE goal and reporting requirements. Programs should communicate with grantees/MWBE Program to set up MWBE goals on contracts & procurement docs, inform them about the MWBE requirements, and notify the MWBE Program about grantees non-compliance concerns. GFE must be demonstrated and documented for waiver requests to be processed. A Waiver Request is not an after thought or an alternative to compliance. 2/26/20 Questions?
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