N.Y. Executive Law § 310: Definitions

* § 310. Definitions. As used in this article, the following terms

shall have the following meanings:

1. "Certified business" shall mean a business verified as a minority

or women-owned business enterprise pursuant to section three hundred

fourteen of this article.

2. "Contracting agency" shall mean a state agency which is a party or

a proposed party to a state contract or, in the case of a state contract

described in paragraph (c) of subdivision thirteen of this section,

shall mean the New York state housing finance agency, housing trust fund

corporation or affordable housing corporation, whichever has made or

proposes to make the grant or loan for the state assisted housing

project.

3. "Contractor" shall mean an individual, a business enterprise,

including a sole proprietorship, a partnership, a corporation, a

not-for-profit corporation, or any other party to a state contract, or a

bidder in conjunction with the award of a state contract or a proposed

party to a state contract.

4. "Director" shall mean the director of the division of minority and

women's business development in the department of economic development.

5. "Large county" shall mean a county having a population in excess of

two hundred eighty-five thousand according to the most recent federal

decennial census, provided however, that a county having a population in

excess of two hundred eighty-five thousand according to the nineteen

hundred eighty federal decennial census shall continue to be a large

county thereafter notwithstanding a later census showing a population of

less than two hundred eighty-five thousand for such county.

6. "Metropolitan area" shall mean a city with a population of one

million or more and a county having a population in excess of one

million and immediately contiguous to such city.

7. "Minority-owned business enterprise" shall mean a business

enterprise, including a sole proprietorship, partnership, limited

liability company or corporation that is:

(a) at least fifty-one percent owned by one or more minority group

members;

(b) an enterprise in which such minority ownership is real,

substantial and continuing;

(c) an enterprise in which such minority ownership has and exercises

the authority to control independently the day-to-day business decisions

of the enterprise;

(d) an enterprise authorized to do business in this state and

independently owned and operated;

(e) an enterprise owned by an individual or individuals, whose

ownership, control and operation are relied upon for certification, with

a personal net worth that does not exceed fifteen million dollars, and

such other amount as the director shall set forth in regulations, as

adjusted annually on the first of January for inflation according to the

consumer price index of the previous year; and

(f) an enterprise that is a small business pursuant to subdivision

twenty of this section.

8. "Minority group member" shall mean a United States citizen or

permanent resident noncitizen who is and can demonstrate membership in

one of the following groups:

(a) Black persons having origins in any of the Black African racial

groups;

(b) Hispanic/Latino persons of Mexican, Puerto Rican, Dominican,

Cuban, Central or South American of either Indian or Hispanic origin,

regardless of race;

(c) Native American or Alaskan native persons having origins in any of

the original peoples of North America.

(d) Asian and Pacific Islander persons having origins in any of the

Far East countries, South East Asia, the Indian subcontinent or the

Pacific Islands.

9. "Utilization plan" shall mean a plan prepared by a contractor and

submitted in connection with a proposed state contract. The utilization

plan shall identify certified minority or women-owned business

enterprises, if known, that have committed to perform work in connection

with the proposed state contract as well as any such enterprises, if

known, which the contractor intends to use in connection with the

contractor's performance of the proposed state contract. The plan shall

specifically contain a list, including the name, address and telephone

number, of each certified enterprise with which the contractor intends

to subcontract.

10. "Office" shall mean the division of minority and women's business

development in the department of economic development.

11. "State agency" shall mean (a) (i) any state department, or (ii)

any division, board, commission or bureau of any state department, or

(iii) the state university of New York and the city university of New

York, including all their constituent units except community colleges

and the independent institutions operating statutory or contract

colleges on behalf of the state, or (iv) a board, a majority of whose

members are appointed by the governor or who serve by virtue of being

state officers or employees as defined in subparagraph (i), (ii) or

(iii) of paragraph (i) of subdivision one of section seventy-three of

the public officers law:

(b) a "state authority," as defined in subdivision one of section two

of the public authorities law, and the following:

Albany County Airport Authority;

Albany Port District Commission;

Alfred, Almond, Hornellsville Sewer Authority;

Battery Park City Authority;

Cayuga County Water and Sewer Authority;

(Nelson A. Rockefeller) Empire State Plaza Performing Arts

Center Corporation;

Industrial Exhibit Authority;

Livingston County Water and Sewer Authority;

Long Island Power Authority;

Long Island Rail Road;

Long Island Market Authority;

Manhattan and Bronx Surface Transit Operating Authority;

Metro-North Commuter Railroad;

Metropolitan Suburban Bus Authority;

Metropolitan Transportation Authority;

Natural Heritage Trust;

New York City Transit Authority;

New York Convention Center Operating Corporation;

New York State Bridge Authority;

New York State Olympic Regional Development Authority;

New York State Thruway Authority;

Niagara Falls Public Water Authority;

Niagara Falls Water Board;

Port of Oswego Authority;

Power Authority of the State of New York;

Roosevelt Island Operating Corporation;

Schenectady Metroplex Development Authority;

State Insurance Fund;

Staten Island Rapid Transit Operating Authority;

State University Construction Fund;

Syracuse Regional Airport Authority;

Triborough Bridge and Tunnel Authority.

Upper Mohawk valley regional water board.

Upper Mohawk valley regional water finance authority.

Upper Mohawk valley memorial auditorium authority.

Urban Development Corporation and its subsidiary corporations.

(c) the following only to the extent of state contracts entered into

for its own account or for the benefit of a state agency as defined in

paragraph (a) or (b) of this subdivision:

Dormitory Authority of the State of New York;

Facilities Development Corporation;

New York State Energy Research and Development Authority;

New York State Science and Technology Foundation.

12. "State assisted housing project" shall mean, for such projects

which receive from the New York state housing finance agency, the

affordable housing corporation, the housing trust fund corporation or

the division of housing and community renewal a grant or loan for all or

part of the total project cost:

(a) a "permanent housing project for homeless families" or "project"

as defined in subdivision five of section sixty-four of the private

housing finance law;

(b) a "project" as defined in subdivision twelve of section one

thousand one hundred one of the private housing finance law provided

said project is located in a large county and consists of more than

twelve residential units at a single site;

(c) "affordable home ownership development programs" or "project" as

defined in subdivision eight of section one thousand one hundred eleven

of the private housing finance law provided said project is located in a

metropolitan area as herein defined and consists of more than twelve

residential units at a single site;

(d) a "turnkey/enhanced rental project" or "project" as defined in

subdivision two of section one thousand one hundred six-a of the private

housing finance law;

(e) "infrastructure improvements" as defined in subdivision two of

section one thousand one hundred thirty-one of the private housing

finance law, to the extent that such "infrastructure improvements" are

applied for in connection with a state assisted housing project as

defined in paragraphs (a) through (d) of this subdivision and provided

further that the applicant for such infrastructure improvements and for

such state assisted housing project are identical.

13. "State contract" shall mean: (a) a written agreement or purchase

order instrument, providing for a total expenditure in excess of

twenty-five thousand dollars, whereby a contracting agency is committed

to expend or does expend funds in return for labor, services including

but not limited to legal, financial and other professional services,

supplies, equipment, materials or any combination of the foregoing, to

be performed for, on behalf of, or rendered or furnished to the

contracting agency; (b) a written agreement in excess of one hundred

thousand dollars whereby a contracting agency is committed to expend or

does expend funds for the acquisition, construction, demolition,

replacement, major repair or renovation of real property and

improvements thereon; and (c) a written agreement in excess of one

hundred thousand dollars whereby the owner of a state assisted housing

project is committed to expend or does expend funds for the acquisition,

construction, demolition, replacement, major repair or renovation of

real property and improvements thereon for such project.

14. "Subcontract" shall mean an agreement providing for a total

expenditure in excess of twenty-five thousand dollars for the

construction, demolition, replacement, major repair, renovation,

planning or design of real property and improvements thereon between a

contractor and any individual or business enterprise, including a sole

proprietorship, partnership, corporation, or not-for-profit corporation,

in which a portion of a contractor's obligation under a state contract

is undertaken or assumed, but shall not include any construction,

demolition, replacement, major repair, renovation, planning or design of

real property or improvements thereon for the beneficial use of the

contractor.

15. "Women-owned business enterprise" shall mean a business

enterprise, including a sole proprietorship, partnership, limited

liability company or corporation that is:

(a) at least fifty-one percent owned by one or more United States

citizens or permanent resident noncitizens who are women;

(b) an enterprise in which the ownership interest of such women is

real, substantial and continuing;

(c) an enterprise in which such women ownership has and exercises the

authority to control independently the day-to-day business decisions of

the enterprise;

(d) an enterprise authorized to do business in this state and

independently owned and operated;

(e) an enterprise owned by an individual or individuals, whose

ownership, control and operation are relied upon for certification, with

a personal net worth that does not exceed fifteen million dollars, and

such other amount as the director shall set forth in regulations, as

adjusted annually on the first of January for inflation according to the

consumer price index of the previous year; and

(f) an enterprise that is a small business pursuant to subdivision

twenty of this section.

A firm owned by a minority group member who is also a woman may be

certified as a minority-owned business enterprise, a women-owned

business enterprise, or both, and may be counted towards either a

minority-owned business enterprise goal or a women-owned business

enterprise goal, in regard to any contract or any goal, set by an agency

or authority, but such participation may not be counted towards both

such goals. Such an enterprise's participation in a contract may not be

divided between the minority-owned business enterprise goal and the

women-owned business enterprise goal.

16. "Statewide advocate" shall mean the person appointed by the

director to serve in the capacity of the minority and women-owned

business enterprise statewide advocate and procurement ombudsman.

17. "Commissioner" shall mean the commissioner of the department of

economic development.

18. "Lessee" shall mean an individual, a business enterprise,

including a sole proprietorship, a partnership, a corporation, a

not-for-profit corporation, or any other party to a lease with a state

agency as defined in subdivision eleven of this section, or a respondent

in conjunction with the award of such a lease or a proposed lessee with

a state agency as defined in subdivision eleven of this section.

19. "Personal net worth" shall mean the aggregate adjusted net value

of the assets of an individual remaining after total liabilities are

deducted. Personal net worth includes the individual's share of assets

held jointly with said individual's spouse and does not include the

individual's ownership interest in the certified minority and

women-owned business enterprise, the individual's equity in his or her

primary residence, ownership interest in a holding company established

for the exclusive and sole purpose of leasing machinery, equipment, or

vehicles exclusively to the certified minority or women-owned business

enterprise that is majority owned by the minority group member or woman

relied upon for certification, and the holding company does not own any

other assets of any kind, or up to seven hundred fifty thousand dollars

of the present cash value of any qualified retirement savings plan or

individual retirement account held by the individual less any penalties

for early withdrawal.

20. "Small business" as used in this section, unless otherwise

indicated, shall mean a business which has a significant business

presence in the state, is independently owned and operated, not dominant

in its field and employs, based on its industry, a certain number of

persons as determined by the director, but not to exceed three hundred,

except during a declared state disaster emergency as defined pursuant to

section twenty-eight of this chapter, not to exceed three hundred

employees who work thirty or more hours per week over the period of

fifty-two weeks for a total of one thousand five hundred sixty hours

worked, taking into consideration factors which include, but are not

limited to, federal small business administration standards pursuant to

13 CFR part 121 and any amendments thereto. The director may issue

regulations on the construction of the terms in this definition. For

purposes of this subdivision, an employee may break from employment for

up to thirteen weeks without the fifty-two week lookback period

resetting.

21. "The disparity study" shall refer to the disparity study

commissioned by the department of economic development, pursuant to

section three hundred twelve-a of this article, and published on June

thirtieth, two thousand seventeen.

22. "Diversity practices" shall mean the contractor's practices and

policies with respect to:

(a) utilizing or mentoring certified minority and women-owned business

enterprises in contracts awarded by a state agency or other public

corporation, as subcontractors and suppliers; and

(b) entering into partnerships, joint ventures or other similar

arrangements with certified minority and women-owned business

enterprises as defined in this article or other applicable statute or

regulation governing an entity's utilization of minority or women-owned

business enterprises.

23. "Provisional MWBE Certification" shall mean minority and

women-owned business enterprise certification status which shall not

exceed one year, but which may be renewed by the director.

* NB Repealed July 1, 2028