Legal and Compliance
Participation by Service-Disabled Veteran-Owned Business (SDVOBs) with Respect to State University of New York Contracts
May 01, 2016
This procedure item applies to:
This procedure sets forth guidelines to assist state-operated campuses of the State University of New York (University) in the procurement of materials, supplies, equipment, construction, construction-related services and services (including printing) from New York State certified Service-Disabled Veteran-Owned Businesses (SDVOBs). Specifically, it outlines steps that campuses must employ in the procurement process for commodities and services (Procedure Item 7553) and construction (Procedure Item 7554) and construction-related services (Procedure Item 7555) in order to be in compliance with NYS Executive Law Article 17-B and 9 NYCRR Part 252.
This procedure applies to all procurements exceeding $25,000 for labor, services (including architectural and design services), supplies, equipment or materials, and for procurements exceeding $100,000 for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements.
As outlined in Executive Law 17-B, the University is required to ensure that SDVOBs, certified by the New York State Office of General Services (OGS), have an equal opportunity to receive and participate in University procurements. It is the intent of the University to reach, on an annual basis, a SDVOB utilization goal of 6% as established by New York State Executive Law Article 17-B.
The University's MWBE Program is responsible for oversight of the SDVOB Program and will comply with NY Executive Law Article 17-B, 9 NYCRR Part 252. The responsibilities include, but are not limited to the following:
The New York State Office of General Services, Division of Service-Disabled Veterans' Business Development (DSDVBD) maintains the Directory of NYS Certified SDVOBs. The directory is imported regularly into PRISM, SUNY's web-based contract management system. The Directory of NYS Certified SDVOBs is also posted on the OGS website.
Any solicitation for or contract that conforms to the definition of state contract as described in the rules and regulations of the SDVOB program (9 NYCRR § 252) shall include language referencing Use of Service-Disabled Veteran-Owned Business Enterprises in Contract Performance, pursuant to New York State Executive Law Article 17-B.
The Utilization Plan (UP) shall be submitted by the contractor at the time the bid/proposal is submitted.
Campus procurement personnel have three primary options for using NYS Certified SDVOBs in their contracting/purchasing activities. It is the responsibility of each campus to determine which option, or combination of options, can best achieve the University's goal as published annually by the SUNY MWBE Program office.
When assessing a procurement to determine which, of the three options for using NYS Certified SDVOBs should be used, a campus should consider:
If requested, the Business Officer or campus designee, shall require the contractor to provide access to other relevant documentation.
Within forty-five (45) business days after completion of a contract, the MWBE Coordinator shall submit to the central repository at MWBEProgram@SUNY.edu a final SDVOB Compliance Report detailing total expenditures by the contractors to SDVOB subcontractors.
Commercially useful function. A service-disabled veteran-owned business enterprise performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, a service-disabled veteran-owned business enterprise must, where applicable and in accordance with any State agency specifications, also be responsible, with respect to materials and supplies used on the contract, for ordering and negotiating price, determining quality and quantity and installing. A service-disabled veteran-owned business enterprise does not perform a commercially useful function if its role adds no substantive value and is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of participation. Factors to be used in assessing whether a service-disabled veteran-owned business is performing a commercially useful function include: (1) the amount of work subcontracted; (2) industry practices; (3) whether the amount the service-disabled veteran-owned business enterprise is to be paid under the contract is commensurate with the work it is to perform; (4) the credit claimed towards service-disabled veteran-owned business enterprise utilization goals for the performance of the work by the service-disabled veteran-owned business enterprise; and (5) any other relevant factors.
Goal - Shall mean the percentage of aggregate agency expenditures targeted for the participation of certified service-disabled veteran-owned business enterprises sought to be included in State procurements opportunities as prime contractors, subcontractors, suppliers, consultants, joint ventures, teaming agreements, or other similar arrangements.
Joint venture - A contractual agreement joining together two or more business enterprises, one of which is a certified service-disabled veteran-owned business enterprise, for the purpose of performing on a State contract. The certified service-disabled veteran-owned business enterprise must provide a percentage of value added services representing an equitable interest in the joint venture. All parties agree to share in the profits and losses of the business endeavor according to their percentage of equitable interest.
Mentor-Protégé Agreement - A contract between a prime contractor, the "Mentor," and a service-disabled veteran-owned business enterprise, the "Protégé," in which there is a transfer of knowledge, technology, or other resources, which promotes the economic growth of the service-disabled veteran-owned business enterprise or fosters the establishment of a long term business relationship between Mentor and Protégé.
Service-Disabled Veteran - Shall mean: (1) in the case of the United States Army, Navy, Air Force, Marines, Coast Guard, Army National Guard or Air National Guard and/or Reserves thereof, a veteran who received a compensation rating of ten percent or greater from the United State Department of Veterans Affairs or from the United States Department of Defense because of a service-connected disability occurred in the line of duty; and (2) in the case of the New York guard or the New York naval militia and/or reserves thereof, a veteran who certifies, pursuant to the rules and regulations promulgated by the director of the division of service-disabled veterans' business development, to having incurred an injury equivalent to a compensation rating of ten percent or greater from the United States Department of Veterans Affairs or from the United States Department of Defense because of a service-connected disability incurred in the line of duty.
Small business - Is defined as one which is resident in this state, independently owned and operated, not dominant in its field and employs one hundred or less persons.
State Contract - For purposes of this procedure, a “state contract” with the State University of New York (the “University”) is (a) a written agreement or purchase order instrument, providing for a total expenditure in excess of twenty-five thousand dollars ($25,000.00), whereby the University 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 an combination of the foregoing, to be performed for, or rendered or furnished to the University; (b) a written agreement in excess of one hundred thousand dollars ($100,000.00) whereby the University 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 ($100,000.00) whereby the University as an 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.
Subcontract - Any agreement for a total expenditure in excess of $25,000 providing for services, including non-staffing expenditures, supplies or materials of any kind between a State agency and a prime contractor, in which a portion of the prime contractor's obligation under the State contract is undertaken or assumed by a business enterprise not controlled by the prime contractor.
Teaming Agreement - A utilization plan arrangement between two or more parties, one of which is a certified service-disabled veteran-owned business enterprise, to perform on a specific State contract if awarded to the team. The team itself may be a joint venture, or one of the team members may be designated to act as the prime contractor, and the other member(s) designated to act as subcontractors.
Unbundling - a process whereby the procurement contract is divided into smaller parts to provide NYS certified SDVOBs better access to SUNY's procurement opportunities. Unbundling can be divided into two types, horizontal and vertical. Horizontal unbundling divides the procurement contract into multiple lots. Vertical unbundling divides each lot into different phases of the procurement process. This offers opportunities for campuses to prepare a bid on one or a larger set of lots, where each of the phases offers new opportunity for SDVOB participation. Procurement staff may reduce barriers to bid packages by employing the strategy of "unbundling" projects.
Utilization Plan - The plan which must be submitted by a contractor to a State agency listing certified service-disabled veteran-owned business enterprises that the contractor intends to use in the performance of a proposed State contract, or any components of the contract scope of work which the contractor intends certified service-disabled veteran-owned business enterprises to perform. 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, or otherwise submit in connection with satisfaction of the contract goals.
Set Aside -shall mean the reservation in whole or in part of certain procurements by State agencies subject to guidelines to be issued by the commissioner regarding discretionary purchasing, bidding where more than one certified service-disabled veteran-owned business can provide the construction, construction services, non-construction services, technology, commodities, products and other classifications that will facilitate meeting the goal and meeting state agencies' form, function and utility.
7564-001 - SDVOB Awards
7564-002 - SDVOB Disbursements/Utilization
7564-003 - SDVOB Waivers
7564-107 - SDVOB Utilization Plan
7564-111 - Monthly SDVOB Compliance Report
7564-113 - Quarterly SDVOB Compliance Report
7564-114 - SDVOB Waiver Request
7564-114a - Request for Waiver from Campus to University-wide MWBE Program
7564-121a - Prospective Bidder's Notice Commodities Services
7564-121b - Prospective Bidder's Notice Construction
7564-121c - Prospective Bidder's Notice Construction-Related Consultant Services
7555-15 - Sub-Consultant Staffing List - Architecture and Engineering
7555-16 - Sub-Consultant Staffing List - Construction Management
7555-17 - Sub-Consultant Staffing List - Commissioning
SUNY Procedure Document No. 7553 - Purchasing and Contracting (Procurement)
SUNY Procedure Document No. 7554 - Construction Contracting
SUNY Procedure Document No. 7555 - Construction-Related Consultant Contracting Procedures
SUNY Procedure Document No. 7561 - Contract Award Protest Procedure
SUNY Policy Document No. 7556 - Procurement Opportunities for New York State Certified Minority- and Women-Owned Businesses
NYS Executive Law: Article 17-B - (§§369-H-369-J) Participation by Service-Disabled Veterans with Respect to State Contracts
NYS Education Law §355 (Powers of Trustees).
NYS State Finance Law Article 11 (§§160 -168) State Purchasing
[New York State laws are available through the New York State Legislature materials website, under ‘Laws of New York State’ section].
There is no history relevant to this procedure.