Certification of LBE's.
66 RCNY § 11-03
in effect§ 11-03 Certification of LBE's.
(a) Application for certification.
(1) A contractor or subcontractor seeking certification as an LBE is responsible for submission of true and accurate certification documents demonstrating that it meets all eligibility criteria. Falsification of any documents submitted in connection with the LBE program may lead to the imposition of civil and criminal penalties as provided by law and contract and disqualification from the LBE program.
(2) A contractor or subcontractor seeking certification as an LBE when no contract is pending shall submit its certification documents directly to the Division.
(3) A contractor seeking certification as an LBE when bidding on a particular contract shall submit its certification documents to the contracting agency with its bid.
(4) A subcontractor which has been proposed as an LBE subcontractor by a contractor bidding on a contract but has not been certified as an LBE shall have its certification documents submitted by the bidder in the sealed envelope to the contracting agency within 10 days after notification of low bid.
(5) A subcontractor which has been proposed as an LBE subcontractor by a contractor subsequent to contract award but has not been certified as an LBE shall have its certification documents submitted by the contractor in a sealed envelope to the contracting agency within 10 business days from the date that the proposed LBE subcontractor is identified.
(6) The contracting agency shall immediately transmit certification documents it receives to OEFO.
(7) A contractor or subcontractor shall submit such additional information as may be required by OEFO in connection with its certifications as an LBE. Failure to submit such information within 10 business days of the date of a written request may result in the denial or revocation of certification as an LBE.
(8) Consistent with the requirements of Federal, State and City law, neither OEFO nor any contracting agency shall disclose to unauthorized persons confidential business information submitted by contractors and subcontractors.
(b) Eligibility requirements.
(1) A contractor or subcontractor shall be certified as an LBE upon a determination by OEFO that it has met the eligibility requirements set forth in the Administrative Code, § 6-108.1 and these regulations. The initial certification shall be effective for three years and shall expire at the end of such period, except as provided in 66 RCNY § 11-03(b)(2) and (b)(9). An LBE may apply to have certification renewed after this three year period, as set forth in 66 RCNY § 11-03(b)(4).
(2) A business which has been in existence for less than one year prior to the date of application for certification and which would otherwise qualify as an LBE except that it does not meet the criteria set forth in 66 RCNY § 11-02 "Locally based enterprise" (2), may nevertheless be certified as an LBE, provided that such certification shall expire one year after it is granted unless the business meets the criteria set forth in such paragraph within one year of the date of its certification.
(3) An LBE seeking continuance of certification granted according to subdivision (b)(2) of this section must submit certification documents before two months prior to the one year anniversary of such certification. If after this one year period, the business meets all the criteria for LBE eligibility as set forth in 66 RCNY § 11-02 "Locally based enterprise," certification shall be granted for two more years. This business may apply to have certification renewed after this two year period as set forth in 66 RCNY § 11-03(b)(4).
(4) An LBE may seek to have its certification renewed for successive one year periods by submitting certification documents before two months prior to the expiration date of its certification demonstrating that it continues to meet the eligibility requirements set forth in Administrative Code, § 6-108.1 and these regulations.
(5) Failure to submit certification documents before two months prior to the applicable certification anniversary date, as set forth in 66 RCNY § 11-03(b)(3) or (b)(4), may result in the expiration of the LBE certification on the anniversary date.
(6) If the certification of an LBE expires or if the LBE is determined to be ineligible for re-certification, the LBE may submit another set of certification documents six months after the date its original certification expired or six months after the date it was determined to be ineligible for re-certification.
(7) If an LBE submits certification documents before two months prior to the applicable certification anniversary date, as set forth in 66 RCNY § 11-03(b)(3) or (b)(4), and the Division is unable to make a determination before the anniversary date, the LBE will be notified that certification will continue until the Division makes a determination as to the LBE's status. If an LBE submits certification documents within the second month prior to the anniversary date, the Division may not be able to review the documents to determine their completeness and the LBE's certification will expire. If the Division is able to review the documents, it may notify the LBE that its certification will continue beyond the anniversary date. If an LBE submits certification documents within the month prior to the anniversary date, its certification will expire on the anniversary date unless it is re-certified.
(8) A business which was certified as an LBE prior to the effective date of these regulations shall be deemed to have been certified as an LBE on the date of such certification, provided however that any business which was less than one year old at the time of such certification and did not meet all the criteria of eligibility set forth in 66 RCNY § 11-03 "Locally based enterprise" of these regulations, shall be deemed to have been certified according to 66 RCNY § 11-03(b)(2) and such certification shall expire on the one year anniversary of the certification date. Such business may seek continuance of its certification as provided in 66 RCNY § 11-03(b)(3).
(9) Any LBE which has been certified prior to the effective date of these regulations, for a period longer than specified in 66 RCNY § 11-03(b)(1) and (b)(2), must submit certification documents within two months after the effective date of these regulations, unless re-certification has been granted prior to the effective date of these regulations.
(10) It is the intent of these regulations to qualify businesses as LBEs only if the ownership, management and operations of the business are conducted by persons who do not own, manage or operate other similar businesses which would otherwise be ineligible. Any business applying for LBE certification that does not conform to this intent shall be deemed ineligible as an LBE.
(11) An LBE must be an independent business. A business that is a separate entity for tax or corporate purposes shall not necessarily be deemed to be an independent business. In determining whether a business is an independent business, the Division shall consider all relevant factors, including but not limited to the date the business was established, the identity of the principals, the sources of financing and the major shareholders, if any, of the business.
(12) The owner of an LBE must possess the ability to manage the business and to make necessary management and policy decisions. The business must not be subject to any extraordinary formal or informal restrictions which limit the discretion of the owners.
(13) The following types of ownership, control, or circumstances concerning a business seeking certification as an LBE shall render it ineligible for participation in the program:
(i) ownership of the business by a non-LBE construction business;
(ii) whole or partial ownership of the business by a person who is an owner in whole or in part of another construction business when the sum of the gross receipts of these businesses exceeds the limits as provided for in 66 RCNY § 11-22 "Locally based enterprise";
(iii) whole or partial ownership of a business, formed within three years of application, by a person who is an owner in whole or in part of another construction business not eligible for the program;
(iv) control of the business by another construction business through substantial funding arrangements or;
(v) organization of a firm in existence for less than one year whose officers, directors, principal stockholders, or employees serve as the officers, directors, principal stockholders, or employees, of another construction business and one concern is furnishing, or will furnish the other concern with subcontracts, financial or technical assistance, or other facilities, whether for a fee or otherwise.
(14) If, after submitting certification documents, a business is found to not meet the requirements for LBE certification as set forth in 66 RCNY § 11-02 "Locally based enterprise" is otherwise ineligible, it may submit other certification documents for certification six months after the date it was declared ineligible.
(15) A joint venture consisting of an LBE and a non-LBE business may participate in the LBE program as a contractor or subcontractor if both joint venturers' contract work is defined clearly. However, only the LBE's share of the contract work shall be credited towards the LBE goal.
(16) An LBE shall notify the Division within 30 days after any change in its ownership or control. In addition, each LBE shall submit a report to the Division by December 30 of each year describing its present ownership and control. The Division shall review any changes made since an LBE's certification to determine whether it remains eligible as an LBE.
(17) A business certified prior to the effective date of these regulations, whose ownership or control has changed shall notify the Division within 30 days of the effective date of these regulations of such change.
(18) Newly formed businesses and businesses whose ownership or control has changed since the date of issuance of these regulations shall be scrutinized by the Division to determine the reasons for the formation, change in the ownership or control of the business.
(19) Once a business is certified as an LBE, it must satisfactorily complete any contracts it is awarded. If an LBE does not satisfactorily complete a contract, it will be required to participate in and successfully complete a technical assistance program through the Department. If the LBE fails to successfully complete or does not participate in the technical assistance program it will be de-certified as an LBE. An LBE will be given an opportunity to respond to any allegations that it has not performed satisfactorily on a contract or that it has not successfully completed or participated in the technical assistance program pursuant to the procedure in 66 RCNY § 11-03(c)(8). If an LBE is de-certified, such business may re-apply for certification after six months from the date of de-certification. It must demonstrate at that time that it has improved its work performance.
(c) Certification responsibilities of the Division.
(1) Division shall have the power to certify, re-certify and de-certify a contractor or a subcontractor as an LBE upon a determination that the contractor or subcontractor has met or failed to meet the eligibility requirements and conditions set forth in Administrative Code § 6-108.1 and these regulations.
(2) The determination by the Division as to a contractor's or subcontractor's eligibility for certification as an LBE shall be final.
(3) the Division shall be the central repository for all documentation filed by contractors and subcontractors involving their status as an LBE.
(4) the Division shall maintain and provide to all contracting agencies a list of all certified LBEs. the Division shall maintain and provide to all contracting agencies a list by borough of all contractors and subcontractors who perform work in such borough to qualify as LBEs.
(5) When there is a contract pending award and a contractor has submitted incomplete certification documents, the Division shall notify the contractor either by telephone or letter within five business days of actual receipt of the documents that they are incomplete. The contractor shall have 10 business days from the date of the telephone call or from the date of the letter to complete the certification documents. If the contractor fails to submit the additional information within the time allowed, the contractor shall be so notified by the Division by letter on the next business day following the 10 day response period. Copies of this notification letter shall be sent to the prime contractor and the agency.
(6) If complete certification documents have been submitted by a proposed LBE subcontractor for a particular contract waiting award, the Division within one business day after determining that the documents are complete, shall notify the contracting agency that the contract may be awarded.
(7) The Division shall notify the proposed LBE contractor (and the prime contractor and the contracting agency where applicable) of its certification determination within 15 business days of the receipt of complete certification documents.
(8) If the Division has reason to believe that an LBE is in violation of Administrative Code § 6-108.1 or these regulations, the Division shall provide notice to the LBE by certified mail, return receipt requested, of the alleged violation. Within twenty-five calendar days of the receipt of such notice the LBE may respond to the allegation in writing or request an opportunity to appear before the Commissioner or the Commissioner's designee to respond to the allegation. The Commissioner or the designee, after considering the evidence of the alleged violation and any material submitted by the LBE, shall determine whether the LBE shall be de-certified. The Commissioner or the designee may determine that a contractor or subcontractor who has been de-certified shall be ineligible for certification for a period of up to three years after such de-certification.
(9) If at any time the Division has reason to believe that a contractor or subcontractor has willfully and knowingly provided incorrect information or made false statements, it shall refer the matter to its Inspector General for investigation. The Inspector General shall investigate the matter in accordance with applicable rules and procedures, and, where appropriate, refer or report the matter to the Department of Investigation. Falsification of any document by a contractor or subcontractor may lead to the imposition of civil and criminal penalties as provided by law and contract, disqualification from the LBE program and debarment from City contracts.
(10) The Division shall conduct audits of LBEs to verify information provided by them.
(11) The Division shall determine the effectiveness of Administrative Code § 6-108.1 by conducting surveys or other studies it deems appropriate.
Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-92883Fetched: 10/24/2026