Minority and Women-Owned Business Enterprise Compliance

Minority and Women-Owned Business Enterprise (M/WBE) Participation Goals

The Minorities and Women in Business Enterprise program was established in the state of New York in order to promote equality in state contracting and is managed by the Empire State Development’s Division of Minority and Women’s Business Development. The participation goal is 30%.

The following M/WBE requirements are pursuant to Article 15-A of the New York State Executive Law. They apply when you submit an application for grant funding that exceeds $25,000 for the full grant period.

Compliance can be achieved by one of the methods described below. Full participation by meeting or exceeding the M/WBE participation goal for your grant is the preferred method.

M/WBE participation includes services, materials, or supplies purchased from minority and women-owned firms certified with the NYS Division of Minority and Women’s Business Development. Not-for-profit agencies are not eligible for this certification. For additional information and a listing of currently certified M/WBEs, see the NYS Directory of Certified Minority and Women-Owned Business Enterprises.

Please note that beginning in the spring of 2020 SED’s M/WBE Unit will only accept M/WBE certification from currently certified New York State firms. They will no longer accept firms that have applied and/or are seeking certification. These firms will not count towards the M/WBE goal.

The M/WBE participation goal is 30% of your total discretionary non-personal service budget for each year of your grant. Discretionary non-personal service budget is defined as total annual budget, excluding the sum of funds budgeted for:

1. Direct personal services (i.e., professional and support staff salaries) and fringe benefits.
2. Rent, lease, utilities and indirect costs, if these items are allowable expenditures.
3. Project related expenditures with a Preferred Source vendor as defined under section 162 of the State Finance Law.

The M/WBE Goal Calculation Worksheet is provided for use in calculating the dollar amount of the M/WBE goal for your grant application.

All requested information and documentation should be provided at the time of submission. If this cannot be done, you will have thirty days from the date of notice of award to submit the necessary documents and respond satisfactorily to any follow-up questions from the Department. Failure to do so may result in the loss of funding.

Methods to Comply

You can comply with NYSED’s M/WBE policy by one of the following methods (see Checklist below for the appropriate forms to complete):

1. Full Participation
   This is the preferred method of compliance. Full participation is achieved when you meet or exceed the participation goals for your grant.
2. Partial Participation, Partial Request for Waiver
   This is acceptable only if good faith efforts to achieve full participation are made and documented, but full participation is not possible.
3. No Participation, Request for Complete Waiver
   This is acceptable only if good faith efforts to achieve full or partial participation are made and documented, but do not result in any participation by M/WBE firm(s).
4. No Participation, M/WBE Goal is $0
   This method is acceptable when all grant expenditures are in the personal service budget codes only: Professional and/or Support Staff Salaries, and Employee Benefits.
5. Preferred Source
   Use of a Preferred Source vendor under Section 162 of the State Finance Law takes precedence over compliance with SED’s M/WBE policy. This section of the Law places Preferred Source status on commodities and services produced by the correctional industries program of the Dept. of Corrections (CorCraft), any qualified non-profit agency for the blind, and any special employment program serving developmentally disabled individuals (NYSID). It does not refer to the special relationship between BOCES and school districts through cooperative service agreements (CoSer). BOCES are not considered a Preferred Source under the State Finance Law.
6. Deferred Compliance
   This is acceptable if you are unable to identify participating M/WBE firm(s) at the time of your application submission. You will then have thirty days from the date of notice of grant award to submit the necessary documents for one of the above methods of compliance and respond satisfactorily to any follow-up questions from SED. Failure to do so may result in the loss of funding.

Good Faith Efforts

You must make a good faith effort to solicit NYS certified M/WBE firms as subcontractors and/or suppliers to achieve the goals for your grant. Solicitations may include, but are not limited to: advertisements in minority and women-centered publications; solicitation of vendors found in the NYS Directory of Certified Minority and Women-Owned Business Enterprises; and the solicitation of minority and women-oriented trade and labor organizations.

Good faith efforts include actions such as setting up meetings or announcements to make M/WBEs aware of supplier and subcontracting opportunities, identifying logical areas of the grant project that could be subcontracted to M/WBE firms, and utilizing all current lists of M/WBEs who are available for and may be interested in subcontracting or supplying goods for the project.

You must submit evidence of your good faith efforts to comply with the stated M/WBE goals. Examples of acceptable documentation can be found in form M/WBE 105, Contractor’s Good Faith Efforts Certification, but include email exchanges along with the M/WBE form 105 (A), copies of your procurement policy and its impact on M/WBE hiring and copies of any relevant RFP with a memo that explains the lack of M/WBE applicants. NYSED reserves the right to reject any application for failure to document “good faith efforts.”

Request for Waiver

When full participation cannot be achieved, you must submit a Request for Waiver (M/WBE 101), along with M/WBE 105 and M/WBE 105A Contractor Unavailable. Requests for Waivers must be accompanied by documentation demonstrating the good faith efforts made and the reasons you were unsuccessful in obtaining M/WBE participation.

NYSED reserves the right to approve the addition or deletion of subcontractors or suppliers to enable applicants to comply with the M/WBE goals, provided such addition or deletion does not impact the technical proposal and/or increase the total budget.

M/WBE Reporting

All payments to Minority and Women-Owned Business Enterprise subcontractor(s) should be reported to the NYSED M/WBE Program Unit using the M/WBE 104G M/WBE Compliance Report for Grants. For LGRMIF grantees, this report should be submitted on an annual basis. Contact the NYSED M/WBE Office to obtain the form: MWBE@nysed.gov. You can also submit the form to this email address.

NYSED’s M/WBE Coordinator is available to assist applicants in meeting the M/WBE goals. The Coordinator can be reached at MWBE@nysed.gov.

Equal Employment Opportunity Reporting (EEO)

Pursuant to Article 15-A of the New York State Executive Law, all M/WBE compliant applicants must complete and submit form EEO 100: Staffing Plan, no matter what level of compliance you are seeking.

M/WBE Compliance Checklist

Note: In the spring of 2020 SED’s M/WBE Unit revised some of the forms listed below as well as certain requirements. For more information on these changes please see the Guide to the NYS Education Department’s M/WBE Grant Review Process

The following checklist outlines the forms required for compliance.

*Note:  If the goal calculation amount in line 10 is above $0, applicants may not apply at the Preferred Source level of participation. Please use the forms for No Participation, Request for Complete Waiver, if M/WBE participation cannot be achieved for the calculated goal amount.