1. INTRODUCTION TO THE MWBE PROGRAM
Division of Affirmative Action Programs Minority and Women Business Enterprises (MWBE) Program
INTRODUCTION TO THE MWBE PROGRAM

2. Overview DOS MWBE Policy Summary of Article 15-A of the Executive Law
2/15/2017
Overview
DOS MWBE Policy
Summary of Article 15-A of the Executive Law
MWBE and Other Important Definitions
How Does MWBE Apply to You?
DOS Grantees Contract Forms
Your Responsibilities Under Article 15-A (NYSCS)
Assessing and Meeting the MWBE Goals
Information on MWBE Waiver Request
Information on MWBE Certification
Information on the SDVOB Program
Q/A

3. 2/15/2017
Minority and Women-Owned Business Enterprises (MWBE) Program at the Department of State (DOS)
DOS supports the statewide requirement to provide procurement opportunities for MWBE. The Division of Affirmative Action Programs administers the Department’s MWBE Program.
All Department’s contracts, including GRANTS, must be assessed for MWBE goals and comply with the MWBE participation goal established in the contract. DOS grantees must comply with the MWBE contractual requirements: engaging certified MWBEs and reporting utilization.
All community based organizations, local governments, not-for-profit organizations and sub grantees affiliated with the Department of State are required to cooperate with our joint effort to strengthen and expand our Minority and Women-Owned Business Enterprise Program

4. NYS Executive Law Article 15-A §§ 310-317 (Article 15-A)
2/15/2017
NYS Executive Law Article 15-A §§ (Article 15-A)
Article 15-A of the NYS Executive law was enacted on July 19, The goal is to promote equality of economic opportunities for MWBEs and to eliminate barriers to their participation in state contracting.
Contracts with value >$25,000 commodities/services and >$100,000 for construction and construction related contracts MUST be assessed for MWBE goals.
Equal Employment Opportunity
Equal Procurement Opportunity
Certified MWBEs & Eliminate Barriers to Access State Contracting

5. 2010 Disparity Study
Identified that there was a significant disparity between the availability of MWBEs in the marketplace and the number and value of state contracts awarded to MWBEs in NYS

6. Empire State Development
The Division of Minority/Women Business Development (DMWBD) promotes equality of economic opportunities for MWBEs and to eliminate barriers to their participation in State contracts.
Powers include:
Certifying business as MWBEs and verifying minority and women-ownership and control of firms which seek certification,
Assisting state agencies in their efforts to award a “fair share” of contracts to MWBEs,
Ensuring and promoting equal employment on state contracted projects,
Maintaining an updated directory of certified minority and women-owned firms.

7. Minority-owned Business Enterprise (MBE)
A business enterprise that is at least 51
percent owned by citizens or permanent
resident aliens who are members of a
minority group.
Black persons having origins in any of the Black African racial groups;
Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent of either Indian or Hispanic origin, regardless of race;
Asian and Pacific Islander persons having origins in any of the Far East countries, Southeast Asia, the Indian subcontinent or the Pacific Islands; or
Native American or Alaskan Native persons having origins in any of the original peoples of North America.

8. Women-owned Business Enterprise (WBE)
A business enterprise that
is at least 51 percent
owned by citizens or
permanent resident aliens
who are women.

9. Other Important Definitions
Grantee/Contractor: an individual, a business enterprise including a sole proprietorship, a partnership, a corporation, a not-for-profit organization, or any other party to a State contract, or a bidder in conjunction with the awarding of a State contract or a proposed party to a State contract.
State Contracts: A written agreement or purchase order instrument providing for a total expenditure of more than $25,000 by a contracting agency in return for labor, services, supplies, equipment and or materials or any combination thereof.
Certified enterprise or business: a business enterprise which has been approved by the Division for minority or woman owned business enterprise status subsequent to verification that the business is owned, operated and controlled by minority group members or women.
Expenditure: Any payment by a state agency, including but not limited to payments made pursuant to a state contract, purchase order, invoice or non-personal services.

10. Other Important Definitions (Con’t)
Subcontract: Any agreement between the contractor and a subcontractor to provide services, including non-staffing expenditures, supplies or materials of any kind.
Equal Employment Opportunities: A contractor and subcontractor’s conscientious and active efforts to afford employment opportunities to minority group members and women without discrimination because of race, creed, color, national origin, sex, age, disability, veteran's status and other protected categories.
Goal (30%): Effective The percentage of aggregate agency expenditures targeted for the participation of certified minority and or women-owned business enterprises sought to be included in state procurement opportunities as prime contractors, subcontractors, suppliers, consultants or other similar arrangements.

11. How Does MWBE Apply to You?
DOS closely monitors contracts for compliance with Article 15-A
Contractors/Grantees need to keep in mind these Requirements:
Under 5 NYCRR §142.8, 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.
Currently, NYS Contracts have an MWBE goal of of the MWBE applicable contract amount (15%M & 15%W).
Goals apply to qualified (subbed out/procured) budget lines of all contracts, including contracts supported with federal funding which are not DBE.
Your established goal can be identified in the RFA and/or Contract.
Section 316-a of Article 15-A and 5 NYCRR §142.13: Failure to comply with the MWBE participation goal set forth in the contract, or to demonstrate the GFE to do so, constitutes a breach of contract and the contractor could be found liable to the Department for liquidated or other appropriate damages.
30%

12. DOS Grantees Contract Forms
EEO Statement (Form A)- Contractor must submit EEO policy statement, at the time of contract execution or when requested, to ensure that minority groups and women are afforded equal employment opportunity without discrimination within their organization.
Staffing Plan (Form B)- As part of the bid or proposal, a contractor must submit a staffing plan to document the composition of the proposed workforce.
Workforce Employment Utilization Report (Form C)- a component of the Staffing Plan which requires quarterly updates be provided on the actual workforce utilized in performance of contract.
MWBE Utilization Plan (Form D)- Contractor must submit an MWBE Utilization plan with any bid or proposal to list the certified MWBEs it intends to use to perform on the contract. The plan shall also be submitted online through the New York State Contract System (System).
Request for Waiver (Form E)- may be granted with Governor's Office approval, if a contractor is unable to comply with MWBE goals after documenting good faith efforts.
Quarterly MWBE Contractor Compliance Report (Form F)- documents the progress made towards achievement of the MWBE contract goals. Applicable only if the contractor cannot access the internet for online reporting purposes or is not able to complete online reporting through the System during a quarter.

13. Your Responsibilities Under Article 15-A – NYSCS –
If you are awarded a contract and the contract is not federally funded, you are required to:
Create an account in the New York State Contract System (System) at:
Submit your MWBE utilization plans through the System
Through the System:
Report payments to MWBE subcontractors as soon as you pay them, and
Communicate with your contract’s program manager

14. New York State Contract System (NYSCS)
NYSCS is a web-based tool managed by ESD that provides:
Online Certification Applications
Access to M/WBE Directory
Prime online reporting of subcontractor utilization
Subcontractor payment confirmation
Online M/WBE application and management
Multiple user accounts for each vendor
Substantial time saving for staff
Data is collected in standard format

15. Setting-Up An Account Getting Started!
Once you are awarded a grant, DOS will provide you step-by-step guides and informational memos with instructions on how to use the System.

16. Submission of MWBE Utilization Plans
You are required to submit an MWBE Utilization Plan (UP) or a Certification Letter within ten (10) business days after you receive notice from DOS that you have been awarded grants.
The Certification Letter is your commitment to show due-diligence to comply with the MWBE goals. It applies when subcontractors are not known yet; within two weeks after the selection of vendor/subcontractor, you must submit the UP to the MWBE Program.
As of July 2016, DOS grantees are submitting their MWBE utilization plans through the System’s Statewide Utilization Management Plan (SUMP) for DOS approval.
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.
Note: Utilization plans for 100% federally funded contracts are not processed in the System.

17. Reporting of MWBE Utilization and Workforce Utilization
You should use the System to report payments to your MWBE subcontractors/vendors as soon as those payments occur.
At the end of each state quarter (June, September, December, March), you must ensure that your subcontractors/vendors have confirmed the reported utilization data.
You will submit paper M/WBE Quarterly Report (form F) only when you are unable to access the System or are not required to use it – Federally funded.
You must submit paper Workforce Employment Utilization reports on a quarterly basis. The workforce employment utilization is not submitted through the System.
Note: Utilization for 100% federally funded contracts is not processed in the System.

18. Reporting of MWBE Utilization Through the System
YES – Audit Complete
NO – Action Needed

19. Assessing MWBE Goal %
Contracts Executed up to December 2014 have MWBE Goal of 20% (10% MBE and 10% WBE) of the total contract value.
Contracts Executed on or after January 2015 have MWBE Goal of 30% (15% MBE and 15% WBE) of MWBE applicable amounts.
As of 2016, new Contracts and Contract Amendments with additional funding will require to keep the 50-50% allocation for MBE and WBE. Waivers will be required if goals are not met.

20. Assessing MWBE Goal Amount
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.
The following are exempted items:
• 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
Note: The portion of matching fund/local share is not included in the goal calculation

21. Calculation Goals Template
See attached Goals Calculation Template

22. Scenario 1: Budget with only MWBE applicable items

23. Scenario 1
The 30% MWBE goal requirement will apply on the entire grant amount because there are no exemptions, the services will be subcontracted out and materials will be purchased.
MWBE Applicable Amount: , (Contractual Services Materials)
Exemptions:
MWBE Goal Amount: 67, (225,000 x 30%)
MBE Goal Amount: 33, (225,000 x 15%)
WBE Goal Amount: 33, (225,000 x 15%)

24. Scenario 2: Budget with self-performed services and MWBE applicable items

25. Scenario 2
The 30% MWBE goal requirement will apply only on the costs for Contractual Services.
Personal Services are exempted.
MWBE Applicable Amount: 23, (Contractual Services)
Exemptions: , (Personal Services)
MWBE Goal Amount: 7, (23,598 x 30%)
MBE Goal Amount: 3, (23,598 x 15%)
WBE Goal Amount: 3, (23,598 x 15%)

26. Scenario 3: Budget with MWBE applicable items and services provided by NFP or other Local Governments

27. Meeting The MWBE Goals
Only the use of New York State-certified M/WBEs counts towards meeting your goals!
Find eligible businesses by searching the NY State M/WBE Directory located at:
If they are not in the Directory, they are not certified vendors!!!
Note: The MWBE Program can assist with identifying MWBE firms.

28. Applying for a Waiver Request
M/WBE Waiver = Reduction or elimination of the M/WBE goals already established on a contract or prior to contract execution. No automatic approval. Waivers are the last resource.
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 – M/WBE Waiver Request
If Grantees do not meet their contractual MWBE goal %, they are required to submit documented waiver justification demonstrating GFE.
Documented justification of the GFE must follow instructions on page 2 of waiver form  Incomplete requests will be returned unprocessed!
Waiver requests, full or partial, are not approved until Executive Chamber agrees with DOS determination.

29. Documented Justification of GFE
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 includes, but is not limited to (see 5 NYCRR 142.8):
Evidence of outreach to MWBEs: mail, , phone calls and follow up;
Any responses by MWBEs to the grantee’s outreach;
Any documentation on price comparison and subcontractors selection;
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.

30. Documented Justification of GFE (Cont’d)
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
You 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 your subcontractors to engage MWBEs, to undertake part of the project’s work or to procure equipment/ materials/supplies.

31. Vendors and MWBE Certification
MWBE Certification  the key to capturing the benefits of Article 15-A.
Empire State Development (ESD) has a simplified process available at
No fee to apply
A streamlined process
A fully integrated online application
Note: The MWBE Program can assist with expediting the certification application process.

32. Service Disabled Veteran-Owned Business Enterprises (SDVOB) Program
Article 17-B of the Executive Law, enacted in 2014, recognizes the veterans’ service to and sacrifice for our nation, and declares that it is New York State’s public policy to promote and encourage the continuing economic development of certified SDVOBs, in order to increase their participation in New York State's contracting opportunities.
Under Article 17-B, the Department of State (DOS) is required to meet the 6% SDVOB utilization goal for its procurement.
We are highly encouraging our grantees to make every effort, to the maximum extent possible, to engage certified SDVOBs in the performance of their contracts, and to report any SDVOB vendor utilization achieved on a quarterly basis.
The Division of Service-Disabled Veterans' Business Development (DSDVBD), housed within the NYS Office of General Services (OGS), maintains a directory of the Certified SDVOBs viewable at:  

33. Takeaways
Article 15-A of the NYS Executive Law regulates the MWBE Program.
Provisions of Article 15-A apply to contracts >$25K commodities/services and >$100K for construction.
All Department’s contracts must include the MWBE participation goal. Grantees must comply with all contractual obligations related to MWBE. Current MWBE Goal 30% (15% MBE and 15% WBE).
Grantees are required to create an account in the New York State Contract System, submit their MWBE utilization plan and report their MWBE utilization through the system
Waiver of MWBE goals needs documented GFE
No automatic waiver approval
Waivers are the last resource

34. Information/Contact Resources
Access to the System:
Locate NYS Certified MWBEs at:
Sign up for a training class:
Apply for the NYS MWBE certification process:
Complete information on the NYS MWBE certification process:
Questions regarding the MWBE Program at DOS, assistance with compliance with MWBE goals, processing MWBE waiver requests, understanding Grantees/Contractors’ responsibilities, or for any assistance with the MWBE Program, contact the Division of Affirmative Action:
Maria C. Herman Api Ohouo
Director, Affirmative Action Programs Minority Business Specialist 1
Phone: Phone:

35. Questions?