General
What does “MWBE” stand for?
Minority- and/or Women-owned Business Enterprise. MWBE is generally used to refer to a business entity that has been certified as a Minority- and/or Women-owned Business Enterprise by the NYS Empire State Development’s (ESD) Division of Minority and Women’s Business Development (DMWBD).
Do MWBE firms have to be certified?
Only firms certified by ESD DMWBD can be utilized to meet MWBE participation goals on State contracts. Firms owned by minorities and women can provide supplies to or subcontract with contractors, however, the monies paid to such firms cannot be counted by the contractor as meeting the MWBE goals on the contract.
Do all New York State Environmental Facilities contracts have goals for MWBE participation?
MWBE requirements apply to any contracts for which EFC provides financial assistance, whether through our grant or State Revolving Fund financing. If EFC provides a combination of SRF financing and grants for the entire project, the MWBE goals are applied, as applicable to all contracts for the entire project. If EFC provides a grant, and the remainder of the project cost is not financed with an SRF loan, the MWBE goal will be applied only to the portion of the project costs paid for by the grant funds.
Are the MWBE goals the same for both Professional Services and Construction Services?
Yes.
What are the MWBE goals applicable to projects that are already under construction prior to award of a Water Infrastructure Improvement Act or Intermunicipal Grant?
All contracts entered into by recipients that are to be paid with WIIA funds, IMG funds, or SRF financial assistance must demonstrate compliance with EFC’s program requirements for the full contract value and must include the required contract language from the applicable EFC mandatory terms and conditions (formerly bid packet). The full value of any contracts that do not include the required contractual language, including those executed prior to grant application, will be disqualified from funding.
Article 15-A
What is New York Executive Law, Article 15-A?
Article 15-A of the New York State Executive Law was enacted in 1988 and created a Division of Minority and Women's Business Development (DMWBD) within the New York State Empire State Development Corporation (ESD). The DMWBD has the right and responsibility to issue regulations and oversee State agency and authority contracting responsibilities in regard to Equal Employment Opportunities and Minority and Women-owned Business participation. The purpose of Article 15-A is to ensure and promote fair and equal employment and minority- and women-owned business participation in State contracts through the establishment of goals for minority- and women-owned business participation.
What minority groups are recognized under Article 15-A?
The following minority groups are recognized for MBE certification:
- 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.
What is the difference between a Disadvantaged Business Enterprise (DBE) and an MWBE?
DBE certification is controlled by the federal government and created pursuant to federal regulations found at 49 CFR Part 26. MBE and WBE certification are controlled by ESD and created pursuant to Article 15-A of the New York State Executive Law. To be eligible for MBE or WBE certification, a business enterprise must be at least fifty-one percent owned by one or more United States citizens or permanent resident aliens who are minority group members or women; the ownership interest of such minorities or women must be real, substantial and continuing; such minority or women ownership has and exercises the authority to control independently the day-to-day business decisions of the enterprise; the enterprise must be authorized to do business in this state and be independently owned and operated; the individual(s) whose ownership, control and operation are relied upon for certification, may not have a personal net worth that exceeds $3.5M as adjusted annually and the enterprise must be a small business as defined by Executive Law 310(20).
Reporting and Utilization
What is an MWBE Utilization Plan?
This is the document that must be submitted by a contractor to the Minority Business Officer (MBO) and identifies the NYS certified MWBEs the contractor intends to use in the performance of a proposed contract. The Utilization Plan identifies the name, address, and telephone number of each MWBE the contractor intends to purchase supplies from or engage as a subcontractor to satisfy the MWBE contract goals.
When should Utilization Plans be submitted to the Minority Business Officer (MBO)?
Utilization Plans should be submitted with any bid, proposal, response to request for qualifications or proposed negotiated contract or within a reasonable time thereafter, but prior to contract execution.
What is the process of filling out the Utilization Plan and what should the MBO be reviewing before it is submitted to EFC for approval?
Utilization Plans (UP) can be found on the MWBE Forms & Guidance page. Instructions are on page 1 of the UP. The MBO must complete Section 1 and the contractor/firm must complete Sections 2 and 3. The UP must be electronically signed by the MBO and contractor/firm and submitted via email to EFC’s Program Compliance Specialist.
What constitutes a good faith effort to utilize a MWBE?
Contractors are required to ensure that good faith efforts are made to include meaningful participation by MWBE’s in EFC’s financings. Contractors must be diligent and creative in order to develop a plan that complies with the program. If your firm incurs difficulty, the Definition of Good Faith Efforts document can assist in preparing the documentation required to support your efforts.
How should contractors search the ESD website to find MWBE vendors?
Contractors/firms must utilize ESD’s New York State Contract System to search for certified firms. For further guidance, please watch this video.
Can I get a waiver or partial waiver from the MWBE requirements?
Waivers or partial waivers in the MWBE participation goals may be granted in certain limited situations. Each situation is assessed independently by EFC. Only after working with your MBO and making good faith efforts to meet the goal requirements of a solicitation/contract, should you submit a partial or total waiver, accompanied by supporting documentation.
How should contractors/firms fill out waiver request forms?
Waiver Request Forms can be found on the MWBE Forms & Guidance Page. Instructions to fill out the form are on page 1 of the Waiver Request Form. The MBO must complete Section 1 and the contractor/firm must fill out Sections 2 and 3. The Waiver Request Form must be electronically signed by the MBO and contractor/firm and submitted via email to EFC’s Program Compliance Specialist.
How do you receive credit for specialty equipment/services under a waiver request?
Specific documentation is required for all specialty equipment and services. The equipment or service should be listed in the approved job specs and call out specifically by make and model and acceptable manufacturers or service providers. Additional documentation of ESD searches for the equipment or service, manufacturer and authorized dealer, screenshot or letter from manufacturer listing authorized dealer and copy of invoice for specific equipment or service form manufacturer or authorized dealer. Please contact an EFC Program Compliance Specialist if you require additional assistance.
How should MBO’s determine eligible contract amounts and the MWBE goals for each contractor on a project?
The eligible contract amount is typically equal to the full contract value, but some exceptions do apply. Please contact your EFC Program Compliance Specialist with any questions.
How do contractors/firms fill out Monthly Compliance Reports and EEO forms?
Download the Monthly MWBE-SDVOB Contractor Compliance report available on the MWBE Forms & Guidance page. The prime contractor lists each subcontractor from the EFC approved UP document and lists the subcontract value and payments made. The MBO uses this monthly report to verify the payments to subcontractors and to complete the quarterly report required by EFC.
Do I still have to submit a Monthly Contractor Compliance Report if we didn’t have any MWBE utilization this month?
Yes, the MWBE Contractor Compliance Report must be submitted every month. If there is no MWBE utilization in a given month, the report must be submitted to the MBO reflecting a $0 value.
What documents are an MBO required to request from contractors/firms and how long should records be kept?
If the participation listed on the Utilization Plan is less than the MWBE goals, then a Waiver Request with Good Faith Effort documentation and a schedule of values or scope of services will be required. Copies of the executed contracts and additional documentation may be requested.
All bid documents, contracts, change orders, amendments, UP’s, waivers, etc. related to the EFC financing are required to be maintained for a period of five years after the completion of the project.