Monthly Archives: September 2018

NY’s MWBE Program Is Problematic, But What Is the Solution?

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The current Minority and Women-Owned Business Enterprise (MWBE) program in New York State isn’t working as it was intended. It has created obstacles and difficulties for both general contractors and MWBEs. Proponents and critics can often agree on that. There is debate, however, about which part of the program is most problematic and to whom.

Are the 30 percent MWBE goals a burden on general contractors who say they can’t find qualified MWBEs to meet the quota and end up forced to hire a company that ends up too small or inexperienced to properly do the work or must file a waiver and delay the process?

Or is it more onerous on women and minority owned businesses who can’t get certification to qualify, saying the process is too difficult and the state needs to provide assistance to businesses trying to apply?

In 2014, Governor Andrew Cuomo increased the goal for using MWBE businesses on state contracts from 20 to 30 percent. That is the highest percentage in the nation. Under that current state law, MWBE goals only apply to state-funded contracts issued by state agencies and authorities. Cuomo pushed for expansion for 2019 that would have expanded the program to local contracts or any funded by the state. It also would have provided annual goals for specific minority groups. But those changes were not in the approved budget. As a matter of fact, the MWBE Article 15 program, scheduled to expire at the end of this year, was only extended for one year, instead of the previously expected five. That has some proponents of the program fearing it might be gone altogether soon.

The N.Y. State Senate is holding hearings “to examine the Minority and Women-Owned Business Enterprises program, and consider potential legislative solutions to create a more effective and efficient program to enhance New York’s business climate.”

People from both side of the issues have attended the hearings and testified to the difficulties with the program and proposed their ideas for a solution. Some suggest adjusting the goals by region, pointing out that demographic disparities from one area to another make a statewide mandate impractical.  Or as one person said at the hearing in Watertown, “Brooklyn and Watertown are not the same.”

Another issue creating problems, according to Crain’s New York Business, is that “unlike the largely white-owned incumbent construction firms, MWBEs are rarely unionized though they must pay prevailing wages on state-subsidized work.”

One area contractor says he doesn’t think MWBEs can find or know where to look for the jobs in many cases. He proposes general contractors find a way to help them know about projects out to bid, even if it costs them a little money to do it. Regular events designed to have GCs meet MWBEs rarely result in working relationships, he says.

The New York State Contract System (https://ny.newnycontracts.com/) website has a directory of certified businesses. It also has information to help businesses apply for certification, and on trainings and grant opportunities.

As the debate continues and 30 percent statewide goal remains—at least through the 2019 budget—the state senate will continue to listen to the industry’s issues with the program. The remaining hearings are:

September 26 at 2 p.m. Stage 14, Finger Lakes Community College, 3325 Marvin Sands Drive, Canandaigua. For more information, contact Kristin Frank at (518) 455-2366

October 16 at 11 a.m. Senate Hearing Room, 250 Broadway, 19th Floor, New York. For more information, contact Graham Wise at (518) 455-1765 or Anthony Capozzi (607) 773-8771.

Oral testimony is given by invitation only.

By Chris Colabella and Kara Yorio

P3’s Bring Opportunity and Uncertainty

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When Governor Phil Murphy signed a bill expanding the opportunities for Private-Public Partnerships (PPP or P3) projects, many expressed great hope that this opportunity—with the private companies assuming the financial risk and long-term maintenance of the project—can be the answer to the state’s infrastructure crisis, as well as a boon for construction jobs.

“We’ve seen many municipalities in New Jersey struggle to repair roads and bridges, build new borough facilities and redevelop their communities,” said Jack Kocsis, CEO of Associated Construction Contractors of New Jersey. “This new law now gives them the means to cost-effectively finance much-needed construction projects.”

With the new legislation, a state or local government agency, as well as school districts, can contract with a private company for a project.

“It could be a local library, highway construction, transit-related, the whole raft of infrastructure,” Murphy said when he signed the bill at The College of New Jersey’s Campus Town development, a project built collaboratively with private-sector partners.

Previously New Jersey only allowed P3s with public colleges and universities.

“Democrats and Republicans alike recognize the tremendous benefits that can arise when public officials and private sector partners work together,” Murphy said. “By doing so, we give state, county, and local officials the much-needed flexibility they need to improve their communities while creating good-paying new jobs – in most cases good, union jobs – while leveraging private capital to invest in public infrastructure.”

At its best, a P3 is a win for all, saving municipalities money, getting vitally needed infrastructure upgrades or important community projects done sooner and creating jobs in the construction industry. But it doesn’t always go so smoothly. Not all projects are eligible for P3s and the contracts are complicated. The results have not always been as hoped either.

At least 30 other states had legislation for use of P3s in widespread projects, but many have run into trouble. In Texas, the private company that operated a toll road went bankrupt forcing the state to step in and assist in financing. In Chicago, a deal required taxpayers to reimburse the private company when parking meters didn’t produce expected revenues.

There have also been concerns about a lack of oversight with everything from potential environmental issues to transparency to ensure fair competition in bidding–would large companies, perhaps from out-of-state come in and do all the work, or could the high risk taken on by the private companies keep some from bidding at all?  Another big concern was labor protections. Most of these issues, however, were addressed during the legislative process and are reflected in the law.

“During the legislative hearings, UTCA (Utility and Transportation Contractors Association of New Jersey) was successful in obtaining important amendments to protect the interests of our industry. The Association has been working with our partners for several years on P3 legislation and thanks to that successful effort, New Jersey has an important new tool for financing infrastructure,” UTCA said in a statement following the bill signing in August.

Kocsis agreed that the key protections are in place.

“In addition, the new law contains strong, time-tested contractor and labor protections ACCNJ has promoted for decades,” he said. “Equally important, this P3 legislation will not replace traditional project delivery, but rather supplement existing procurement and project financing methods.”

It will take time, various projects-and likely some failures-to know how to use P3s most effectively and to the benefit of the public and all parties involved and to decide if the optimism was warranted and this type of partnership is, in fact, the best long-term answer.

By Chris Colabella & Kara Yorio