252.1 Definitions

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(c) Business enterprise shall mean any entity, including a sole proprietorship, partnership, limited liability partnership, limited liability company or corporation, [including not-for-profit corporations,] which is authorized to and engages in lawful business transactions in accordance with New York law.

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(e) Certified service-disabled veteran-owned business enterprise shall mean a business enterprise, including a sole proprietorship, partnership, limited liability company or corporation [, including not-for-profit corporations] that is:

Amend Subparagraphs 252.2 (i)(2)(iv) and 252.2(i)(2)(v)

252.2 State agency responsibilities: purpose, scope and applicability

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(iv) the estimated or, if known, actual dollar amounts to be paid to [and performance dates of each component of a State contract which the contractor intends to be performed by] a certified service-disabled veteran-owned business enterprise; and

(v) a statement that the utilization of certified service-disabled veteran-owned business enterprises for non-commercially useful functions may not be counted towards utilization of certified [minority and women-owned business enterprises] service-disabled veteran-owned business enterprises in the utilization plan.

Amend Subparagraphs 252.2(n)(1)(ii) and (iv) and add a new Subparagraph 252.2(n)(1)(v)

(n) Contractor’s efforts to utilize certified business enterprises

(1) Contractors must document their good faith efforts toward utilizing certified service-disabled veteran-owned business enterprises, including but not limited to, those identified within a utilization plan. Such documented efforts, shall include, at a minimum:

(i) copies of its solicitations of certified service-disabled veteran-owned business enterprises and any responses thereto;

(ii) if responses to the contractor’s solicitations [that] were received, but a certified service-disabled veteran-owned business enterprise was not selected, [and] the specific reasons that such enterprise was not selected;

(iii) the dates of attendance at any pre-bid, pre-award, or other meetings, if any, scheduled by the State agency awarding the State contract, with certified service-disabled veteran-owned business enterprises which the State agency determined were capable of performing the State contract scope of work for the purpose of fulfilling the contract participation goals;

(iv) information describing the specific steps undertaken to reasonably structure the contract scope of work for the purpose of subcontracting with, or obtaining supplies from, certified service-disabled veteran-owned business enterprises[.]; and

(v) other information required by the agency.

This rule is being proposed as a consensus rule because, in accordance with State Administrative Procedure Act § 102 (11) (b) and (c), it implements or conforms to non-discretionary statutory provisions and makes technical changes or is otherwise non-controversial.

Chapter 22 of the Laws of 2014 amended the Executive Law by creating a new Article 17-B, which established a program to increase participation of service-disabled veteran-owned business enterprises, in State contracting.

Emergency rulemakings were filed on July 31, 2014 and November 17, 2014, and the proposed rulemaking was adopted on January 28, 2015. This rulemaking is necessary to make technical and clarification changes to 9 NYCRR § § 252.1 and 252.2.

Subdivisions 252.1(c) and 252.1(e) are being amended to correct the definition of “Business enterprise” to eliminate erroneous references to “not-for-profit corporations.”

Subparagraph 252.2(i)(2)(iv) is being amended to remove a requirement that contractors provide estimated performance dates for each component of the contract, that the contractor intends to have performed by a service-disabled veteran-owned businesses, because this requirement has been found to be unnecessary and has served no benefit to the program.

Subparagraph 252.2(i)(2)(v) is being amended to remove an erroneous reference to minority and women-owned business enterprises and replace it with a correct reference to service-disabled veteran-owned businesses.

Subparagraph 252.2(n)(1)(ii) is being amended to make the requirement less confusing.

Subparagraph 252.2(n)(1)(iv) is being amended and subparagraph 252.2(n)(1)(v) is being added to clarify that individual agencies may have additional required documents.

The Office of General Services projects no substantial adverse impact on jobs or employment opportunities in the State of New York as a result of the amendment of this rule. The amendment simply fixes unintended technical errors in the original regulations and further clarifies the intent of the regulations. The amendment implements or conforms to non-discretionary statutory provisions of the Service-Disabled Veteran-Owned Business Enterprise program, established pursuant to Chapter 22 of the Laws of 2014, and makes technical changes or is otherwise non-controversial. Nothing in the proposed regulations will substantially increase or decrease the number of jobs in New York State, have an adverse impact on specific regions in New York State, or negatively impact jobs in New York State.