NYS Forum IT Procurement Workgroup DOING IT BUSINESS WITH NEW YORK STATE AND NEW YORK CITY GOVERNMENT June 9, 2010 Implementation of Local Law 129 of 2005
Implementation of Local Law 129 of 2005 M/WBE Subcontracting Participation Goals, Waivers & Exemptions Mayor’s Office of Contract Services
Overview • How do agencies establish M/WBE subcontractor participation goals? • What are pre-bid (or pre-proposal) full or partial waivers of the M/WBE subcontractor participation goals?
For Which Kinds of Contracts Must the Agency Chief Contracting Officer (ACCO) Establish M/WBE Subcontractor Goals? 1. Construction “Construction contract” means any agreement with an agency for or in connection with the construction, reconstruction, demolition, excavation, renovation, alteration, improvement, rehabilitation, or repair of any building, facility, physical structure of any kind 2. Professional Services “Professional services” means services that require specialized skills and the exercise of judgment, including but not limited to accountants, lawyers, doctors, computer programmers and consultants, architectural and engineering services, and construction management services
For Which Kinds of Procurement Methods Must the Agency Chief Contracting Officer (ACCO) Establish M/WBE Subcontractor Goals? • M/WBE goals are required on all construction contracts and professional services contracts, except for contracts procured via the following methods: • Emergency Procurements; • Intergovernmental (OGS/GSA) Procurements; • Small Purchases; • Sole Source Contracts; • Government-to-Government Procurements; • State or Federal Required Method or Required/Authorized Source Contracts; • Any procurement that results in an award to a not-for-profit entity.
How does the Agency Chief Contracting Officer (ACCO) Establish the M/WBE Subcontractor Goal for Each Contract? • For each covered (construction or professional) prime contract, four distinct determinations or calculations are made: • Overall Percentage of Subcontracting • Amount of Subcontracting < $1M • Setting Contract Goals • Practical Considerations
1- Overall Percentage of Subcontracting • The percentage of subcontracting in a prime contract is determined. • The current contract is compared with similar contracts the agency has had in the past.
2- Percentage of Subcontracting < $1M • The percentage of construction/professional service subcontracts below $1M is determined. • * Note: This is referred to as the “Target Subcontracting Percentage” or “TSP”
3- Setting Contract Goals Local Law 129 established Citywide goals for M/WBE Participation. Agencies are not locked into citywide goals, and it may be the case that a goal is higher than citywide figures on a given contract as long as the citywide goals are met during the year. These goals are:
4- Practical Considerations • An agency may only be able to meet one or two of the goals per contract. • The bid package or solicitation may ask a bidder to identify which subcontracting goals it will seek to achieve. • Just as well, the agency may direct which ethnic category is chosen for subcontracts in order to meet the goals.
Implementation of Local Law 129: WAIVERS Understanding, Completing and Evaluating Schedule B, Part III: Request for Waiver of Target Subcontracting Percentage
Overview of Waivers Context: What if a bidder can’t meet all or part of the target subcontracting goal? Apply for a Pre-Award Waiver. • 2 Types of Waivers: Full and Partial • Full Waiver: NO SUBCONTRACTING • Partial Waiver: SUBCONTRACTING AT AMOUNT LOWER THAN AGENCY TSP • 3 Outcomes of Waivers: Full, Partial, and Denied • Vendor Receives FULL Waiver: NO SUP Submission, but MUST Submit Waiver Form.* • Vendor Receives PARTIAL Waiver: MUST submit SUP and Waiver Form with Bid Package or be found non-responsive. • Vendor’s Waiver is DENIED: Submit SUP ONLY. *Note that an “SUP” refers to the Subcontractor Utilization Plan.
Evaluating a Vendor’s Waiver Request: Eligibility Bidder MUST show: • Legitimate Reason (“Bona Fide Intention”) • Bidder’s business model differs significantly from the way the agency envisioned the contract performance. • Determine whether the vendor’s reasons/representations are bona fide? • Bidder’s past subcontracting practices. • Good Faith. • Capacity • The ability to perform the contract: (1) without any subcontracting (FULL); (2) without awarding any subcontracts under $1 million (FULL); or (3) without awarding the amount of subcontracts under $1 million set out by the agency in the target subcontracting percentage (PARTIAL).