New York City’s M/WBE Program is governed by Local Law 1 of 2013 (LL 1). LL 1 was enacted after an updated disparity analysis undertaken by the City. The law allows City agencies to set M/WBE participation goals on standardized, professional and construction services contracts. The full provisions of LL 1 law are detailed in section 6-129 of the New York City Administrative Code.
M/WBE participation goals indicate the percentage (in dollars) of a contract that must be performed by a city-certified woman- or minority-owned business. The goals may be met through an M/WBE prime contractor’s self-performance, a joint venture between an M/WBE and non-M/WBE firm, or through the use of M/WBE subcontractors. Generally, participation goals apply to contracts for standardized, professional and construction services contracts with a history of subcontracting in areas with M/WBE availability. Goals are not required for contracts that are not competitively awarded, are awarded to a nonprofit entity, or those contracts with preemptive state or federal goals.
Solicitations for contracts subject to M/WBE participation goals will include the MWBE Utilization Plan (Schedule B), which details the participation goals set by the contracting agency. Vendors must acknowledge their intention to fulfill the participation goals by signing the Schedule B and indicating how they plan to achieve the goal. Vendors must also indicate the scopes of work they intend to subcontract and the total dollar value they plan to award to M/WBEs.
Solicitations for contracts subject to M/WBE participation goals will include the M/WBE Notice to All Prospective Contractors (“M/WBE Notice”). The M/WBE Notice provides a brief description of the M/WBE legal requirements, informs contractors that all provisions of the law are incorporated into the proposed contract, and instructs prospective bidders or proposers on where to find the participation goals of the contract, as well as what items must be included with the bid or proposal.
A vendor that plans to submit a bid or proposal in response to a solicitation for a standardized, professional or construction services contract that contains M/WBE participation goals may seek to request a full or partial reduction in the goals by filing a waiver request with the contracting agency during the pre-bid or pre-proposal stage. The agency and MOCS then evaluate the extent to which the vendor’s business model and history of subcontracting in the relevant industries is consistent with the request.
Regardless of industry or M/WBE Program applicability, prime contractors must submit a Subcontractor Approval Form for each entity to be awarded a subcontract. In addition to submitting the subcontractor approval form, in order to obtain subcontractor approval for contracts valued at $250,000 or greater, prime contractors are required to list all subcontractors in PIP.
After the start of a contract, a vendor should contact the contracting agency if it determines that it will have difficulty achieving the participation goals that have been set. Vendors must make every effort to identify and use City-certified M/WBE firms to fulfill their participation goal requirements.