I. DESIGNATION OF AN MBO
Potential recipients of financial assistance (Recipients) from the New York State Environmental Facilities Corporation (EFC) are required to designate a Minority Business Officer (MBO). The MBO must be an employee of the potential Recipient. The designated individual must possess the necessary operational resources and authority to effectively administer EFC’s programs related to the Minority and Women-Owned Business Enterprise (MWBE), Disadvantaged Business Enterprise (DBE), Service-Disabled Veteran Owned Business Enterprise (SDVOB), and Equal Employment Opportunity (EEO) requirements.
The MBO will be responsible for conducting good faith efforts to seek MWBE and SDVOB prime contractors, help contractors include certified MBEs, WBEs, and SDVOBs on their contracts, and monitor, track and enforce compliance with the MWBE, SDVOB, DBE and EEO requirements for the Recipient. The MBO is identified on the “MWBE/DBE/SDVOB/EEO Work Plan,” an EFC form required as part of the paperwork necessary for listing a potential project on EFC’s Intended Use Plan.
II. EFC’S MANDATORY TERMS AND CONDITIONS
EFC has prepared Mandatory Terms and Conditions (formerly known as Bid Packets) that contain required contract language, guidance and forms related to all of the SRF program requirements including MWBE, SDVOB, DBE and EEO. The required contract language in the Mandatory Terms and Conditions must be included in all contracts and subcontracts as well as all requests for proposals, bid documents, and other procurement documents. The Mandatory Terms and Conditions are updated every October.
The required contract language in the Mandatory Terms and Conditions applies to contracts, change orders, and amendments on or after the effective date of the Mandatory Terms and Conditions. MWBE and SDVOB goals, applicable at the time of execution of a contract, will apply for the life of that contract.
If bid documents are submitted to EFC for review and approval but bid notification is delayed, an amendment to the contract may be required to incorporate the most recent required contract language from the Mandatory Terms and Conditions if there have been significant changes (such as new goals) to the Mandatory Terms and Conditions since the bid documents were submitted.
If a contract was below the threshold requiring the Mandatory Terms and Conditions (for example, an engineering contract below the $25,000 threshold), but subsequent contract revisions cause the contract to meet or exceed the threshold requiring the Mandatory Terms and Conditions, the contract must be amended to incorporate the Mandatory Terms and Conditions that is in effect at the time the contract meets the threshold.
III. THRESHOLD VALUES FOR MWBE, SDVOB, DBE AND EEO REQUIREMENTS
EFC’s Mandatory Terms and Conditions contain the monetary thresholds at which the MWBE, SDVOB, DBE and EEO requirements apply to particular contracts and subcontracts. Please see the Mandatory Terms and Conditions applicable to the contract or subcontract to determine if these requirements apply.
IV. FORMS TO BE INCLUDED WITH BIDS
All forms are required to be maintained in a New York State Clean Water or Drinking Water State Revolving Fund (SRF) (or other relevant EFC financing) Program file for a period of five years after completion of the project. See the applicable Mandatory Terms and Conditions for additional information regarding the forms to be submitted with bids. These may include an EEO Policy Statement and a Lobbying Certification, depending on the type of financing offered by EFC.
V. MBO RESPONSIBILITIES:
a) SERVE AS PRIMARY POINT OF CONTACT AND MWBE, SDVOB, DBE AND EEO PROGRAM LIASON:
The MBO will serve as the primary point of contact for EFC as well as for prime contractors, service providers, and subcontractors on all MWBE, SDVOB, DBE and EEO issues during the life of the project.
The MBO should contact EFC early in the project planning process to introduce themselves to their Program Compliance Specialist for the project and ensure they are aware of MWBE, SDVOB, DBE, and EEO requirements. EFC’s Program Compliance Specialist will require the MBO’s participation on all conference calls regarding MWBE and SDVOB requirements. The MBO will also communicate as needed with EFC staff about the progress of the contract(s) and notify EFC staff in advance of pre-bid, pre-construction, and progress meetings.
The MBO should inform prospective contractors and service providers of their MWBE, SDVOB, DBE and EEO obligations as part of the pre-bid or pre-selection process.
The MBO should also keep a list of qualified MWBE & SDVOB firms that are interested in working on the project and provide the list to potential bidders and/or prime contractors. The MBO should encourage joint ventures, teaming agreements, partnerships, or other similar arrangements between prime contractors and MWBE or SDVOB certified businesses.
b) SERVE AS MWBE, SDVOB, DBE AND EEO PROGRAM SPECIALIST:
The MBO should anticipate and keep abreast of issues that may arise, such as changes in MWBE, SDVOB, DBE and EEO rules and regulations or updates to forms that may affect the project.
The MBO will maintain familiarity with NYS Empire State Development’s (ESD) Division of Minority and Women Business website, NYS Directory of Certified Firms, in order to assist contractors and service providers in their good faith efforts and arrange project progress meetings to provide MWBE program guidance to contractors and service providers.
The MBO will maintain familiarity with NYS Office of General Service’s (OGS) Division of Service-Disabled Veterans’ Owned Business Development website in order to assist contractors and service providers in their good faith efforts and arrange project progress meetings to provide SDVOB guidance to contractors and service providers.
c) HELP CONTRACTORS TO DEVELOP AND MAINTAIN UTILIZATION PLANS:
MWBE and SDVOB each have their own separate utilization plan form:
A firm that is both a certified MWBE and a certified SDVOB may take credit for both.
Utilization Plans (UPs) and/or Waiver Requests must be submitted to the MBO with any bid, proposal, response to request for qualifications or proposed negotiated contract or within a reasonable time thereafter, but prior to contract execution. The MBO ensures that the UPs are developed correctly by the contractors, that good faith effort documentation is developed, that contractors certify that all MWBE and SDVOB subcontractors will perform a commercially useful function, that suppliers and brokers are credited properly on the UP and that the UPs are transmitted within 10 days to EFC. They work with consultants and contractors to remove any deficiencies and problematic areas in the UP and ensure GFE documentation is acceptable before they fill out their section of the UP and submit it to EFC.
The MBO may use the “Utilization Plan and Waiver Request Checklist” when reviewing the UPs and can then submit the form to EFC with the UP.
After EFC accepts the UP, the MBO sends a letter of approval to the contractor. EFC has developed an optional UP approval letter for MBOs to use, which is sent along with EFC’s UP acceptance. This approval letter details the contractor’s MWBE and SDVOB responsibilities once the UP or waiver is approved.
If the status of a contract changes through change orders or amendments, or addition, loss or modification of subcontractors or subcontract amounts, the UP should be revised to reflect the impact on the contract value or MWBE (or SDVOB) participation. The MBO should know when change orders or amendments are executed and ensure that the information is noted on the next quarterly report for EFC’s review of the UP. EFC will send a form to the MBO accepting the revisions to the UP. The MBO should notify the contractor that the UP revision was approved.
d) PROGRAM ACCOUNTABILITY:
The MBO should maintain an EFC Project File for each project or contract. Records should be saved in the file for a period of 5 years after completion of the project.
Minimal records kept in project files include:
- EEO documentation,
- good faith effort documentation for MWBE and SDVOB,
- meeting minutes,
- all signed contracts and subcontracts,
- equipment invoices,
- legally signed purchase orders, and
- copies of proof of payments to MWBE and SDVOB firms, such as both sides of canceled checks or other payment verifications.
EFC and/or other state or federal agencies may audit the MBO’s SRF Program files related to the EFC financing. The MBO should make necessary information available for compliance reviews and audits of projects and contracts.
e) COMPLIANCE REPORTING:
- Monthly MWBE and SDVOB Payment Reports: The MBO is responsible for receiving monthly payment reports from prime contractors and service providers detailing payments made to MWBE and SDVOB subcontractors along with proof of payment documentation. Payments should not be discounted for suppliers and brokers on the report; full payments should be reported. The monthly reports are to be reviewed by the MBO to determine whether the MBEs, WBEs, and SDVOBs listed on the utilization plan are used on the contract and are paid appropriately or whether any changes necessitating a revised UP have occurred. Any changes to the contract value due to change orders or amendments should be reflected on the monthly report and payments made to the prime contractor must be up to date. When reviewing the changes please verify that the goals are being met when they are included. Monthly reports are not to be forwarded to EFC but should be maintained in the SRF Program file. These monthly reports should be used to generate the information that is entered in the quarterly reports.
- Quarterly Reports: The MBO will be required to submit quarterly payment reports by compiling the contractor’s monthly reports of MWBE and SDVOB activity into a single quarterly report form and transmitting to EFC via e-mail to [email protected]. The report should be in Excel format. The MBO may delegate responsibility for filling out quarterly reports to an authorized representative. The contact information for the authorized representative is to be transmitted to EFC on the utilization plan or in an email. However, the MBO is still responsible for reviewing the information submitted by contractors and service providers to ensure the reported payments match the proof of payments the contractor submitted. EFC will send out a reminder notice each quarter transmitting the forms and asking for these reports by a certain date. The MBO or authorized representative must sign the quarterly report form, not the contractor.
Please be advised that if the quarterly reports are not submitted when requested by EFC or if MWBE and SDVOB payments are low in proportion to payments made to the prime contractor, payment may be withheld until the issue is resolved. - MWBE-SDVOB Closeout of Contracts: The MBO is responsible for reviewing proof of payments made to MWBEs and SDVOBs at the close of a contract and submitting the final quarterly report denoting that the contract is closed. EFC will review the payment information received on the quarterly reports over the term of the project against the projected payments on the Utilization Plan. Proof of payments must be maintained in the SRF Program File for review by EFC.
f) EQUIPMENT PURCHASES
Equipment purchases made by the Recipient for the funded project are subject to MWBE, DBE and/or SDVOB requirements. The Recipient takes on the roles and responsibilities of Contractor when making direct equipment purchases. The language requirement is met by including the contract language from EFC’s Mandatory Terms and Conditions in the bid documents (i.e., RFP or RFQ). The good faith effort requirement is met by searching the ESD Directory for firms that provide the materials needed and contacting them to solicit a bid. The ESD search result and solicitation log are required good faith effort documentation.
EFC welcomes you to contact us via email at [email protected] for further questions regarding the MBO role and responsibilities. Current versions of all MWBE forms or SDVOB forms identified in this document are available or from your Program Compliance Specialist at (518) 402-6924.