Sec. 142.7. Waivers

(a) A State agency shall not grant any automatic waivers of goal requirements on a State contract but may grant a partial or total waiver of goal requirements established on a State contract only upon the submission of a waiver form by a contractor, documenting good faith efforts, as defined in section 142.8 of this Part, by the contractor to meet the goal requirements of the State contract, and in consideration of the following factors:

(1) the number and types of certified minority- or women-owned business enterprises available to perform on any subcontractable scopes of the contract;

(2) the total dollar value of the State contract;

(3) the contract scope of work to be performed;

(4) the project size;

(5) the project term;

(6) the availability of other business enterprises located in the region qualified to do the work to be performed;

(7) the ability of certified minority- and women-owned business enterprises located outside the region to perform the State contract;

(8) whether certified minority- or women-owned businesses which have been solicited by the contractor exhibited interest in submitting proposals for a particular project by attending, or having attended, a pre-bid conference, if any, scheduled by the State agency awarding the State contract with certified minority- and women-owned business enterprises;

(9) whether the contractor provided timely written notification of subcontracting opportunities on the State contract to appropriate certified businesses that appear in the directory of certified businesses prepared pursuant to section 311(3)(f) of the Executive Law; and

(10) the extent to which contractor’s own actions, including but not limited to, any failure by contractor to discharge the contractor’s duties pursuant to this Part or article 15-A of the Executive Law, contributed to contractor’s inability to meet the maximum feasible portion of the contract goals.

(b) Requests for a partial or total waiver of goal requirements established on a State contract made prior to the award of the contract may be made simultaneously with the submission of the utilization plan for that State contract. If a contractor is found non-responsive or non-responsible by a State agency, the request for a waiver shall be deemed moot.

(c) Requests for a partial or total waiver made subsequent to award of a State contract may be made at any time during the term of the State contract but prior to the submission of a request for final payment on that contract.

(d) Forms for requests of a partial or total waiver of goal requirements established on a State contract, shall include a request for the following information, where applicable:

(1) the names of general circulation, media, trade association and minority- and women-oriented publications in which bids were solicited for purposes of complying with goal requirements established for certified minority- and women-owned business enterprise participation;

(2) the dates for which bid solicitations for certified minority- and women- owned business participation were published in any of the publications named pursuant to paragraph (1) of this subdivision and the text of the bid solicitation;

(3) a list of certified minority- and women-owned business enterprises appearing in the directory which were solicited in writing to provide bids for purposes of complying with a State agency's goal requirements for certified minority- and women-owned business enterprise participation;

(4) proof of dates on which such solicitations were made in writing and copies of solicitations made, or a sample copy of the solicitation if an identical solicitation was made of all certified minority- and women-owned business enterprises;

(5) copies of responses made by certified minority- and women-owned business enterprises to solicitations made by the contractor;

(6) a description of any contract documents, plans or specifications made available to certified minority- and women-owned business enterprises for purposes of soliciting their bids, and the dates and manner in which these documents were made available;

(7) documentation of any negotiations between the contractor and/or certified minority- and women-owned business enterprises undertaken for purposes of complying with goal requirements established for certified minority- and women-owned business enterprise participation;

(8) any other information determined relevant by the State agency or the contractor; and

(9) a statement setting forth the contractor's basis for requesting a partial or total waiver.

(e) Upon the issuance of all waivers of compliance, the contracting agency shall publish on its website on a monthly basis, if practicable, but no less than on a quarterly basis:

(1) information identifying the contract, including the value of the contract;

(2) the name of the contractor receiving the waiver;

(3) the date of the waiver; and

(4) the specific contract provisions to which the waiver applies.

(f) The division may require State agencies to submit requests for waivers for compliance review prior to final approval. The director of the division shall not participate in such compliance review.