The M/WBE Compliance Unit (ODIR) reviews and monitors M/WBE Compliance to Local Law 1, Local Law 129 and Procurement Policy Board Rules (PPB). The M/WBE Compliance Unit also provides administrative and logistical support required for adequate M/WBE utilization on DDC contracts.
The ODIR M/WBE compliance process begins when an M/WBE Outreach and Compliance Analyst establish and communicate the M/WBE Participation Goal to the intra/ inter departmental stakeholders. The goal is established by identifying the subcontracting opportunities in the scope report and/or cost estimate and is reflected on the Schedule B Utilization plan.
The M/WBE Outreach and Compliance Analyst attends pre-proposal meetings, bid openings, pre-award, and pre-construction meetings to communicate the M/WBE goal.
Upon issuance of NTP Letter, the M/WBE Outreach and Compliance Analyst requests subsequent documentation.
The M/WBE Outreach and Compliance Analyst monitors the M/WBE Participation goal established by the agency.
Upon completion of a project, the M/WBE Outreach and Compliance Analyst issues a Closeout Memo and/or a MOCS Non-Compliance action Memo.
As per Procurement Policy Board (PPB) Rule 4-13(c), requests for authorization for all subcontractors must be approved regardless of industry or M/WBE status. The Prime Contractor/Consultant must submit an RFAS/C form for each firm to be awarded a subcontract on the project. This form is submitted in addition to the information required to be entered in the Payee Information Portal(PIP). The Form requires:
All requested identifying information about the subcontractor/subconsultant
Specific subcontract description
An approximate subcontract dollar value
Subcontractor/Subconsultant New York City M/WBE status (MOCS Best Practices, pg. 25) Should there be changes to a subcontract amount more than 10% or in the amount of $500,000 (whichever is greater), a new RFAS needs to be submitted for approval.
For all intended M/WBE subcontractors/subconsultants utilized during the project, the Prime Contractor/Consultant must submit a signed MWBE Contractor Participation Letter between the Prime and the respective subcontractor/subconsultant detailing:
To assist in ensuring the Prime Contractor/Consultant is compliant with the M/WBE requirements, a Prime Contractor/Consultant Payment Voucher Form for periodic partial and final payment verification must be submitted upon request from the Office of Diversity and Industry Relations(ODIR). The form details:
The total amount paid to subcontractor/subconsultant (including subcontractors/subconsultants that are not M/WBEs)
The address and contact number of each subcontractor/subconsultant
The date and the amount paid to each subcontractors/subconsultant
The Prime Contractor/Consultant will be required to provide copies of the front and back of cancelled checks or notarized Affidavit of Payment Forms as proof of payment to M/WBEs. (MOCS Best Practices, pg. 27)
In order to monitor M/WBE compliance a Prime Contractor/Consultant may submit a notarized Affidavit of Payment form. In lieu of cancelled checks, a notarized Affidavit of Payment form may be submitted as proof of payment to M/WBEs. The Office of Diversity and Industry Relations (ODIR) will periodically request submission of cancelled checks or Affidavit of Payment Form(s) to monitor M/WBE participation compliance. Click here to download form
The Office of Diversity and Industry Relations (ODIR) establishes the M/WBE utilization goal on a contract prior to advertisement. All prospective bidders are given an opportunity to request a waiver of the goal during the pre-bid process. However, once the waiver process is completed, the vendor is required to meet the agreed upon goal during the duration of the contract.
The Office of Diversity and Industry Relations reviews the good faith effort documents and determines whether the M/WBE goal should be modified. This determination is then submitted to the Mayor’s Office of Contract Services (MOCS) for their approval. Upon advisement from MOCS, all requests for modification will only be granted if the agency has deleted any scope of work originally identified to be subcontracted to an M/WBE while the project is still in construction. If the Prime does not qualify for a modification of the goal, ODIR issues a determination and recommends the appropriate non-compliance enforcement action as provided by Local Law 1, including but not limited to:
Monetary sanction of 10% of the shortfall
Assess actual and consequential damages.
Enter an agreement with the contractor allowing the contractor to cure the violation
Assess liquidated damages or reduction of fees, provided that liquidated damages may be based on amounts representing costs of delays in carrying out the purposes of the program.
Revoke the contractor's pre-qualification to bid or make proposals for future contracts.
Established by this section, or in meeting the purposes of the contract, the costs of meeting.
Make a finding that the contractor is in default of the contract.
Utilization goals through additional procurements, the administrative costs of investigation and enforcement, or other factors set forth in the contract.
Terminate the contract.
Exercise rights under the contract to procure goods, services or construction from another.
Declare the contractor to be in breach of contract.
Contractor and charge the cost of such contract to the contractor that has been found to be in non-compliance.
Withhold payment or reimbursement.
Take any other appropriate remedy.
Determine not to renew the contract.
ODIR/ M/WBE Compliance Unit Issues a Non-Compliance Memo to MOCS including shortfall amount.
Should there be a deletion of scope and a modification is submitted, the M/WBE Analyst prepares a Modification Package to be reviewed by oversight agency Mayors Office of Contract Services (MOCS)
Vendors may request a post-award modification if they demonstrate that the goal cannot be met despite their good faith effort to do so. Vendors must use every effort to identify qualified M/WBE firms, as the Mayor’s Office of Contract Services (MOCS) will not approve modification requests until all such efforts have been exhausted and documented. (MOCS Best Practices, pg.17) Click here to download form